POWERPOINT ONE Immanuel Kant: "it is only a legitimate government that guarantees our natural right to freedom, and from this
freedom we derive our rights." Can be assumed Kant looks at the development, creation & implementation of rights as PRIMARILY DEPENDENT on the state and HOW the government within the state functions. (IE: how the people create and enforce this.) Kant stresses that a society can ONLY FUNCTION POLITICALLY IN RELATION TO THE STATE (i.e can be maintained or governed) if fundamental rights, laws and entitlements are given and enhanced by the state. (I.E: the people depend upon the government for their rights, e.t.c; we need our laws to lay out precisely what we're capable of doing or entitled to do -- only basically dependent upon . Kant says these "righteous laws" are founded upon 3 rational principles. 1) The liberty of every member of the society as a man. (does this necessarily mean they're entitled to the same rights as women?) 2) The equality of every member of the society with every other, as a subject. (i.e; people are basically equal.) 3) The independence of every member of the Commonwealth as a citizen. (i.e; no-one has some sort of claim on them from somewhere else.) Moral philosophy of Immanuel Kant: "Act so that you treat humanity, whether in your own person or in that of
another, always as an end and never as a means only." Kant -- "the seat of universal laws in national respect for intrinsic human worthiness, which he simplified to simply
being dignity. Recognises the "inherent dignity of all members of the human family" and affirms faith in the "dignity and worth of the human person" which needs protectio n because "securing the four fr eedoms eedoms is the highest international aspiration and because of the empirical e vidence that violating human rights rig hts conduces to war and barbarism."' Origins of Nature Laws:
Critical backlash -- Jeremy Bentham says that "natural lights are merely nonsense upon stilts", and that we ought to "make laws with respect to hedonism". (Which is an odd way to contextualise it, but a way to estimate the moral status of any actio, based upon; (i) the greatest happiness principle, (ii) universal egoism and (iii) the artificial identification of one’s interests with those of others.
Or ie: "what is morally obligatory is that which produces the greatest amount of happiness for the greatest number of people, happiness being determined by reference to the presence of pleasure and the absence of pain."
On this level, the French Revolution was attacked. ( http://www.iep.utm.edu/bentham/#H4 )
IMMANUEL KANT
is the one credited with "laying the groundwork for the modern understanding of human rights" --
sole "incontrovertible right" was that to freedom. There are four other freedoms he claimed we had to defend; but "intrinsic human worthiness" is what must be defended/protected first and foremost, even despite our natural avarices such as like servility, e.t.c
Other disputes; Hannah Arendt -- the only fundamental right 'exists within the political community itself" -- which makes sense, as without laws we can't expect to govern ourselves.
WORLD WARS WARS & THE EVOLUTIO EVOLUTION N OF HUMAN HUMAN RIGHTS
FURTHER UNDERSTANDING OF IMMANUEL KANT:
CONCEPT OF HUMAN RIGHTS: GENOCIDE -- "usage & currency in international law". Currently in legal debates -- there are different types of
genocide, too. Argue that the definition should be broader. Various types;
Definition; "A DOMINANT GROUP WITHIN A GIVEN SOCIETY IS TO SOME DEGREE SEEKING TO MAKE DISTINCTION BETWEEN ITSELF AND IT'S TARGET GROUP WHICH CAN BECOME INSTITUTIONALISED IN THE LEGAL SYSTEM -- OFTEN UT FORWARD BY REFERRING TO SOME MYTH OF PURITY". 1948 UN CONVENTION ON GENOCIDE, ARTICLE 2 FEELS THE NEED TO ELIMINATE A RIVALRY/ENEMY OR PERCEIVED INCONSISTENCY; DOMINANT GROUP WANTS TO EXERT CONTROL & THEN "CLEANSE" OR ELIMINATE WHAT MIGHT BE INCONSISTENT IN NATIONAL/RACIAL FRAMEWORK. FRAMEWORK. E.G 1915-1920 THE OTTOMAN STATE PROCEEDED TO ETHNIC CLEANSE CERTAIN GREEKS & ARMENIANS. (OR ENEMY GROUP; NEED TO ELIMINATE WHAT MIGHT BE DEEMED AN ANOMALY/INCONSISTEN CY IN THE FR AMEWORK) -- A MYTHOLOGY OF PURITY THAT EXISTS HERE. SUPREME IDENTITY/MYTHOLOGY TO PUNISH/EXTERMINATE PARTICULAR GROUPS. OFTEN INSTITUTIONALISED; NOT A "CASUAL KILLING". AS SOON AS IT BECOMES INSTUTIONALISED, THEN THAT MIGHT BECOME GENOCIDE. "TENDS TO HAVE AN INSTITUTIONALISED STRUCTURE". OFTEN INSTITUTIONALISED & PART OF STATE POLICY: IT'S A MINDSET, IT'S NORMALISED AS A STRUCTURE, LEGALISED IN SOME WAYS -- e.g, Holocaust, laws passed to exclude Jews. SYSTEMATIC AND DELIBERATE, HENCE WHY IT'S BECOME A NORM. What acts are criminalised? criminalised? Rwanda: nearly 800, 000 beings died in the 1994 genocide of the slaughter of the tutsi by the hutus. Followed a plane crash wherein the Rwandan Prime Minister was gunned down; later on, the Arusha Accords which had
settled a three-year civil war in 1993, which were supported by moderate Hutus were gunned down. (I.E; the moderate Hutus were gunned down.) The presidential guard/candidates that attempted to calm others, following the three year long Rwandan Civil War (1990-1993) (1990-1993) failed; genocide began to happen. (between RGF v.s RPF) People can be afraid to intervene as it's a double edged sword; CRIMINALISATION OF GENOCIDE has meant that states show reluctance to intervene/efforts to intervene/cause a cessation (think Rwanda; not seen to be "of sufficient interest/value" to cause the "prevention of the violence" to warrant the expense/resources and risk losing more casualties and it was well advanced in the killing) -- ALSO didn't want to use the word genocide in 1994; if they'd had a convention for it, they couldn't say it & then do nothing about it -- e.g, if you intervene then that also might effect you ALSO w Rwanda ; pub licit y gav e an o utcry that "inte rvent ion wo uld be b e mis unders tood" . INTERNATIONAL LAW DIDN'T HAVE MANY SUPPORT - POSITIVISTS SUPPORT INTERNATIONAL MORALITY, BUT LITTLE ELSE. GENOCIDE might be defined as "a dominant group within a given society is to some degree seeking to make distinction between itself and it's target group, which can become institutionalised in the legal system -- e,g put forward by referring to some meth of purity, and therefore can begin to engage in "population cleansing". May also be seen as a "systematic attempt to wipe out a particular nation" -- or a denial of the right of existence of other human groups." 1948 -- UN General Assembly voted unanimously to create the UN Convention on the Prevention & Punishment on the Crime of Genocide (post World War 2). CERTAIN ACTS CRIMINALISED COMMITTED WITH THE INTENT TO DESTROY ETHNIC/RACIAL/RELIGIOUS GROUPS. Article 2 of the Convention on the Provention & Punishment of the Crime talks about the deliberate + systematic destruction destruction in whole or in part of an ethnic/racial/religious/national group.
When ? -- "When one's own government starts killing national groups. Doesn't have to be an open declaration of conflict." Coined by "Raphael Lemkin", a Polish bibliophile who wrote about pogroms, attacks of Ottomans against Armenians; post Armenian genocide and Wrodl war Two, in the book "Axis Rule, 1944" as he was looking for a definition. Said that there SHOULD be a term like genocide accepted in international law. Used to "stalk the halls, trying to get people to ratify this". In the 1930s he was looking for "legal safeguards" for "ethnic, religious & social" groups; tried to encourage legal conventions, that international law had to provide safeguards for ethnic/national minorities. (IMPORTANT IN THE STATES OF COUNTRIES; NUMEROUS NATIONAL MINORITIES, E.G, BOSNIA, E.T.C.). -- "Does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a national. … A co-ordinated plan of different actions aiming at the destruction of essential foundations of national groups; aims to annihilate the group themselves. themselves. Directed against "the"/"A" national group as an entity and the actions aren't directed them as PEOPLE but as an IDENTITY. (LEMKIN) Lemkin looks at Axis Powers during Germany and uses them as an example; says that genocide doesn't mean the immediate destruction of a minority group except when killed by mass killings but a systematic approach & a coordinated plan of different actions -- if you can PROVE that there is a systematic/co ordinated effort, then it's a genocide. AIM IS TO ANNIHILATE THE GROUP THEMSELVES WHICH IS DIRECTED NOT AGAINST ONE INDIVIDUAL, BUT THE GROUP AS A WHOLE. IF YOU CAN PROVE THIS W. DOCUMENTATION WHEN IT COMES TO CO ORDINATION, YOU HAVE CONCRETE EVIDENCE. IT'S BECAUSE OF THE IDENTIFICATION AS TO WHY YOU'LL KILL THEM.
THREE COMPONENTS; ACCORDING TO UN CONVENTION, GENOCIDE MEANS ANY OF THE F OLLOWING ACTS COMMITTED WITH THE INTENT TO DESTROY !
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Proving intent {this all derived from Article 2}
Legal decisions have not generally required proof of agreements or plans in order to convict on genocide, However, the criminal cases at the ICTY (established 1991-1993) and ICTR have set a high standard for assessing the perpetrator’s state of mind: genocidal intent must be the only reasonable inference based on the facts and circumstances ci rcumstances.
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The mental state for killing remains unclear
IN WHOLE OR IN PART; no numeric value required. ---
First conviction for genocide in the Jean-Paul Akayesu case , wherein he called many Tutsis during the Rwandan genocide & haunted out death lists in mid 1994, control over the communal police and gendarmes for PUBLIC ORDER police, responsible for overseeing the killing of Tutsis, "bourgmestre" of Taba commune in Rwanda. ICTR (established through the UN security Council, by chapter 7 post 1994) found him guilty of 9 counts of genocide and crimes against humanity; first time the Convention on the Prevention and Punishment of the Crime of Genocide was enforced. -- held that "all stable and permanent groups were protected protected by the Convention." [ALSO EXTRADIED, MAKING ZAMBIA THE FIRST AFRICAN NATION TO EXTRADITE CRIMINALS] NOTABLE IN THAT IT WAS THE FIRST TIME THE 1948 CONVENTION ON THE PREVENTION AND PUNSIHMENT OF THE CRIME OF GENOCIDE WAS ENFORCED. Akayesu sentenced to life. International Criminal Tribunal of Rwanda established to prosecute genocide/e.t.c against humanitarian law in 1994 by UNSC, under Chapter VII in order to judge people responsible for the Rwandan Genocide & other serious violations of international law. United Nates Security Council, with UN "allowing you to determine the existence of any threat to the peace, breach of the peace or act of aggression" & "to take military & power to create tribunals to nonmilitary action to restore i nternational peace and security." UNSC has the power
"pause or cessate conflict". (Leaders of Rwanda -- Tutsis? -- killed in an air crash; seen as a chance to get at the Tutsis, instead of the norm.) In 1948, this definition differed considerably from that of crimes against humanity -- I.E, VIOLATIONS AGAINST CIVILIANS DURING WAR ALONE. This limitation clearly no longer applies. Look at Nuremberg case law -- trials held by the Allied Forces of WW2 in 1945-1946 -- International International Military Tribunal; while there was no such laws for crimes against humanity in the early 20th century thanks to state sovereignty, Nuremberg marking the effective start of the International Human Rights movement: later saw the endorsement of the principles of universal jurisdiction -- "the complaining party at your bar today is
civilisation"; applied the concept of universal jurisdiction when it said that the nations who were plaintiffs at Nuremberg were collectively doing what each of them could have done individually -- i,e that some crimes were so terrible any l egitimate court could take jurisdiction of them because they were crimes against ALL humanity (i.e; any member but also on a whole.) Nuremberg saw that the human rights were not solely a matter of national jurisdiction but that a higher law, international law, is applicable … also saw the UN sponsor several human rights & covenants. IE: RELEVANT IT LED TO THE ARTICLE THAT ESTABLISHED CERTAIN CRIMES THAT WERE PUNISHED INTERNATIONALLY. GENOCIDE NOT MENTIONED SPECIFICALLY, BUT INTERNATIONAL MILITARY TRIBUNAL BEGAN THE MOVEMENT TO HAVE IT RECOGNISED ILLEGALLY. -- led to the Genocide Convention in 1948, Human Rights in 1948, Nuremberg Principles (determine what constitutes a war crime) in 1950, Convention on the Abolition of the Statute of Limitations on War Crimes & CAH 1968 & the Geneva Convention on the Laws & Customs of War in 1949.
Nuremberg encouraged a greater interest in human rights + how they could be applied; what, in fact, they meant. Nuremberg started in 1945; established to publish axis/nazi war powers. MOST IMPORTANT is article 6: "Crimes Against Peace" - planning, preparing, initiation or waging of a war of aggression/in violat ion of international treaties. HARD TO PROSECUTE; can't be proven. (i)
Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). Why were there such limitations? (NOTE: BOSNIAN SERB LEADERSHIP BEING TARGETED AFTERWARDS MEANS IT'S REPRESENTATIVE OF WHAT WAS BEING TAKEN AWAY.) WAR CRIMES; been there for centuries, violations of the laws or customs of war, among them murder, ill treatment.
CAN ONLY OCCUR DURING TIMES OF WAR and genocide doesn't "easily occur there". ill-treatment, deportation to slave labour camps, e.t.c CRIMES AGAINST HUMANITY: murder, extermination, enslavement, deportation, e.t.c.
GENOCIDE DOESN'T FIT THEM SPECIFICALLY -- IT SPANS ACROSS THEM. DOESN'T MEAN IF AN ACT ISN'T GENOCIDAL, IT WON'T FIT IN ANY OF THE OTHERS; IT ALMOST ALWAYS WILL. THREE MAIN FACTORS ATTRIBUTED TO GENOCIDE IN HISTORY:
-- associated to wars of conquest; tends to happen in war, BUT IT doesn't need to be of "conquest", the use of religion to justify the massacre of groups & colonial domination as a reason for the destruction of indigenous people. (Cassasse.) Cassase criticises the Convention for excluding "cultural" and "political" political genocide (annihilation of cultural group); says these should have been included. (USSR was agains this) That same exclusion applies within the statue of ICC; these genocides don't exist. If you're killed for your political view, it doesn't make that a genocide. WHY DO THESE OMISSIONS OCCUR?
Wasn't because it's difficult to prove "political animosity" -- Soviet Union didn't like it at the time because of the Cold War era?/ Communist Revolution was occurring at the time; there were ONLY political distinctions in Russia, and if you did not meet them, you could be eliminated too for falling into the category somewhere else. --> GO TO "NOTES FOR SLIDES" NO SPECIFIC "NUMERIC" THRESHOLD REQUIRED TO MAKE IT A GENOCIDE -- if the intent is there, that is all that matters. CASE : July 1995 killing of more than 8,000 Bosnian Muslims in and around the town of Srebrenica during the
Bosnian war, under the command of General Ratko Mladic. "Worst crime on European soil since the second World War". [-- Decision of the ICTY Appeals Chamber in the Krstic case considered that the population of Muslin men targeted i Srebenica was important because of it's "strategic importance" to the Bosnian serb leadership & because of it's prominence in the eyes of the Bosnian Muslims murdered fort their association to Muslims and thhe international community; i.e the UN'S declaration April 1993 that Srebrenica would be a safe land, despite their not existing upon it -- it's fate was emblematic of that of all Bosnian Muslims -- what they would face, what they'd faced. (VRS invaded the UN's safe space in July 1995 nonetheless.)
In a unanimous ruling on the case of Prosecutor v.s Krstic (the General Major in the VRS/The Army of Republika/ Srpsa/Bosnian Serb Army, the Appeals Chamber of the Internal Criminal Tribunal for the Former Yugoslavia ruled that the massacre of the enclave's male inhabitants constituted genocide. Forcible transfer of between 25-30k Bosnian women, children and elderly was found to be confirming evidence of the genocidal intent of the VRS Main Staff, too. Prosecution against Krstic as he was General-Major in the VRS and Commander of the Drina Corps at the time. Curiously enough, this command went directly against the UN's declaration of Srebrenica in April 1993 as a "safe area" under UN protection. "national/ethical/racial or religious group": Convention of the Prevention and Punishment on the Crime of
Genocide" designates groups according to what are "national minorities." !
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Jurisprudence/political theory in the International Criminal Tribunal for the f ormer Yugoslavia argued that a persecuted group is often defined by the perpetrators based on perceived characteristics -- i.e, justif ying it or claiming that the perpetrat ors determine what the issue is , although it may not be physically manifest. I.E; the "offending/victimised" party is determined on what it appears to be, not WHAT it is. The ICTY has also asserted that a group cannot be defined negatively – that is to say, victims cannot be “non-Serbs", "non-intelligent", e.t.c.
DEFINITIONS OF GENOCIDE & HOW IT OUGHT TO BE DEALT WITH, AS PER THE UN GENOCIDE CONVENTION (DEC 9TH 1948): !
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Articl e 1, UN Genoc ide Convention: “The Contracting Parties conf irm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” -- This linking was seen as a problem in the Holocaust as the government didn't know how to link ALL of the Article 1 of the Convention establishes the crime of genocide in times of war or peace. (i.e; there can be no reason for the genocide to be needed, apart from a person's mental state) CAN ONLY BE PUNISHED WHEN IT'S UNDERWAY/OCCURRING. For that reason, it can take place internally – it need not be the outcome of war between states but an internal campaign against citizens. There need be no formal declaration of war
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THREE COMPONENTS: ", "in whole or in part", a "national/ethical/racial or religious group". NEED TO PROVE INTENT/ "intent to destroy": Legal decisions have not generally required proof of agreements or
plans in order to convict on genocide. HOWEVER, the criminal cases at the ICTY (as formed since 1991) and ICTR have set a high standard for assessing the perpetrator's state of mind: genocidal intent must be the only reasonable inference (I.E; THIS CAN HAVE BEEN THEIR ONLY REASON FOR THE ACT) based on facts and circumstances. Absent that state of mi nd, t hen it can b e ANOT HER k ind o f cri me ag ainst humani ty. This has h appened before -there is no "evidence". ICTY & ICTR have set a "high standard" for assessing the state of mind. NO SPECIFIC "NUMERIC" THRESHOLD REQUIRED TO MAKE IT A GENOCIDE -- if the intent is there, that is all that matters. YOU DON'T GENERALLY NEED A HUGE AMOUNT OF DOCUMENTS/PLANS/E.T.C TO CONVICT -THEY MIGHT HAVE BEEN DESTROYED (e.g the 8000 in Srebrenica). For example, the Final Solution did occur in which Hitler in 1942 came up with a way to systematically destroy the Jews; HOWEVER, there is near new documentation. Hitler never turned up; so TECHNICALLY we shouldn't be able to convict. Lemkin: "a coordinated effort." SOMETIMES YOU JUST HAVE TO READ BETWEEN THE LINES. CASE : July 1995 killing of more than 8,000 Bosnian Muslims in and around the town of Srebrenica during the
Bosnian war, under the command of General Ratko Mladic. "Worst crime on European soil since the second World War". [-- Decision of the ICTY Appeals Chamber in the Krstic case considered that the population of Muslin men targeted i Srebenica was important because of it's "strategic importance" to the Bosnian serb leadership & because of it's prominence in the eyes of the Bosnian Muslims and thhe international community; i.e the UN'S declaration April 1993 that Srebrenica would be a safe land, despite their not existing upon it -- it's fate was emblematic of that of all Bosnian Muslims -- what they would face, what they'd faced. (VRS invaded the UN's safe space in July 1995 nonetheless.)
In a unanimous ruling on the case of Prosecutor v.s Krstic (the General Major in the VRS/The Army of Republika/ Srpsa/Bosnian Serb Army, the Appeals Chamber of the Internal Criminal Tribunal for the Former Yugoslavia ruled that the massacre of the enclave's male inhabitants constituted genocide. Forcible transfer of between 25-30k Bosnian women, children and elderly was found to be confirming evidence of the genocidal intent of the VRS Main Staff, too. Prosecution against Krstic as he was General-Major in the VRS and Commander of the Drina Corps at the time. Curiously enough, this command went directly against the UN's declaration of Srebrenica in April 1993 as a "safe area" under UN protection. "national/ethical/racial or religious group": Convention of the Prevention and Punishment on the Crime of
Genocide" designates groups according to what are "national minorities." NEEDS ALSO TO BE A STABLE, DEFINABLE GROUP THAT NEEDS TO FALL/THAT THEY INTEND TO MAKE FALL (not a budding minority.) NEEDS TO BE BASED ON PERCEIVED CHARACTERISTICS & THE ATTACK BASED BECAUSE OF THESE CHARACTERISTICS. CANNOT BE DEFINED NEGATIVELY; not non-Serbs, must be Muslims. Difficult: many things defined as "not like us". THEY'RE BASED UPON WHAT THEY'RE SEEN AS BY THE GROUP, BUT IT CAN'T BE A NEGATIVE VIEW. NOTES ALONGSIDE THE SLIDES: ACTS RELATED TO GENOCIDE: also include causing serious bodily or mental harm -- slavery has been argued as
an act of genocide as it involved "serious psychological harm" although it's not succeeded, deliberately inflicting on the group conditions of life to bring about physical destruction -- means you don't have to pull the trigger; you can starve them, imposing measures intended to prevent births within groups -- if there's a policy that looks like it's preventing birth/procreation/furthering of the rage, forcibly transferring group/children to another group -- this has been applied to the Stolen Generation; considered an abolition of the Aboriginies (def psych harm.) CAN TAKE PLACE IN TIMES OF WAR AND PEACE; DOES NOT NEED TO BE THE OUTCOME BETWEEN STATES BUT AN INTERNAL CAMPAIGN. ARTICLE 1 -- can take place in times of WAR or PEACE; internally, does not need to be the outcome of war between states. Need be no formal declaration of war. Article 2: acts commit ted w the intent to des troy and the deliberate and systematic destruction in whole or in part of an ethnic/racial/religious or national group TYPOLOGIES: Hegemonical -- primary motive of the ruling group is to "subordinate a communal group by killing
enough of it's members thet the survivors have no will to resist." Xenophobic - "elite ideology calls for the elimination of an offending communal group." dEVELOPMENTAL - COLONIAL CLEANSING OF INDIGENOUS POPULATION. "SUPERIOR TECHNOLOGICAL STATE" -- occupied group/colonised people being flushed out by superior technological. (Chile, Argentina; 1960-1970s -- opponents made to "disappear", look this up) -- believes it's a true "development" DESPOTIC GENOCIDE -- clearing away of political opponents. Retributive genocide -- includes clashes between ethnic groups, each trying to wipe one another out. (Rwanda?) Ideological genocide -- where one group defines another as undeserving of life. (gypsies, s lavs, nazis) MORE OFTEN THAN NOT, MARRIED TO RACE; ETHNIC. CHARNY QUOTE DEFINES IT ON THE SLIDE; HOWEVER, victims don't need to be defenceless. People can still be killed even if they are resisting. ARTICLE 2 OF THE CONVENTION SUGGESTS GENOCIDE CAN BE INTERPRETED AS EXPANSIVE; ICTR states that sexual violence may be an example of genocide as it certainly constitutes "infliction of serious bodily and mental harm on the victims" -- quite a few are uncomfortable, although it's referenced in the Akayesu case in 1998 (as happened in Rwanda). because WOMEN who are abused in this context; the abuse would eliminate the "social womb" -- the willingness to pro generate, e.t.c, the fear of WHAT you might pro generate. Unintentional or not way of stamping out the line, especially when there's a racial element -- key link to the physical continuity of a group. Also considered outcasts; use of mass rape can be seen as an assault on the community. Used as a tool of power. AKAYESU case considered how rape might be considered genocidal. - Rape: calculated to bring about physical destruction; women often the key link to the cultural + physical continuity if oa group. Sexually assaulted women also often isolated from the community. EXAMPLES OF GENOCIDE:
King Leopold in Congo; up to 8-10 million might have died in 1885-1906. Effects of genocide are "haunting"; everyone remembers this in quite a grotesque way. "Shadow" effect also seen in Balkans. 1904 Hereros of southern Africa approx. 80,000 killed (German government courtesy of Lieutenant-General Lothar von Trotha) (dubbed the The Kaiser’s Holocaust (Oluga and Erichsen, 2010) "
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1915 – 1922 Turkey, the massacre of Armenians, est. Number 1.5 million (new Turkish government) -- Armenian genocide, although it's a criminal offence to call it that in Turkey.
1918 – 1921 Jews living in Ukraine, approx. 220,000 by pogroms (what spurred Lemzinz/?? on)
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1932 – 1933 Ukrainians, 38 million killed by imposed famine, a result of polices of the Soviet government (not racial) 1933 – 1945 Europe, the Holocaust, approx. 6 million + Jews & 5 millions of gypsies & Slavs, handicapped etc. 1955 – 1972 Sudan, massacre of 500, 000 inhabitants of southern Sudan 1965 – 1967 Indonesia, killings of 500,000 alleged communists -- more a political genocide than anything
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1965 – 1972 Burundi, approx. 300,000 Hutus massacred by Tutsis
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1965 – 1972 Guatemalan Indians
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1967 – 1970 Nigeria, 2-3 million Ibos massacred by Nigerians
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1971 Bangladesh, 1-3 million of Bengalis killed by Pakistani army
STAUB ARGUMENT ; too "deterministic" , but Staub claims that people are predisposed to violence. RELATES BACK TO TORTURE -- should it be challenged? ("Some human beings become capable of killing others as naturally as if they were animals to be slaughtered, w/o even questioning the act." FROHM ARGUMENT; "distinctly different animal -- man he is a killer, but the only primate that kills and tortures
members of his own species without any reason", can kill -- is this too biologically deterministic. are human beings actually v. controlled in how they exercise violence tendency? we use sporting rituals e.t.c although staub & from says we were made to be violent. BEHAVIOURALIST & ANTHROLPOGISTS; der Berge & Hobbes; explained ethnic discrimination based on a
sociobiological understanding (kin selection; vaguely Darwinian) Hobbes -- believed that power and self interest are basic human needs Freud: to "court Thanatos" -- we have the instinctive to kill things and an inbuilt suicidal tendency, but whatever the
ambition/intention, there's a lust & desire to die? "STRUCTURAL CONDITIONS" -- WHY IS GENOCIDE SO DISASTROUS BUT INFECTIVE?
Sociologist Weber can be linked back to Nazi Germany when it talks about mechanised genocide: bureaucracy & sophisticated culture - merged with ideology (technology, bureaucracy & ideology) and became instruments of a state -- the bureaucratisation of an ideology/mentality -- is DANGEROUS. BUREAUCRATIC RATIONALITY -- this centralised processing can centralise violence. Bureaucracy COULD go mad; it could justify itself, but it could go vicious and mad and justify THE MOST APPALLING THINGS. wHEN THE DOMINANT IDEOLOGY TAKES CONTROL OF THIS BUREAUCRACY, GENOCIDE - EASY.
The structural conditions of genocide Max Weber (a) his understanding of the modern state as being the epitome of administrative, bureaucratic rationality, which controls the !
centralised means of violence (once you can combine the two, you are done for.)
(b) his claim that modern societies are defined according to conflict between groups who are competing for scarce resources; (c) drawing on (a) and (b), that a dominant
group or elite, emerges to take control over the centralised means of violence and therefore suppress rival social group. Plural society -- people fighting for resources; especially in poverty & crisis, conditions for genocide soars. along
with inequalities in political/econimc/cultural/social spheres. Discrimination is often rice in institutional processes herenot just ethnicity, but resources can also be a trigger. -- c onsider yugoslavia. Interventions - As genocide can be criminalised there is reluctance to use the term due to it's rel ation to article 1 & 2
as it triggers an obligation to punish it. Can be reluctant to ratify it; US didn't ratify it until late 1988 nearly 40 years after it's adoption, for fear of the Southern states/black would start launching cases. Would violate US security & other slaves bursting forth to claim compensation for their family. AUSTRALIAN GENOCIDE; Trollope observed in 1873 that the Aboriginals have been massacred when they
defended themselves and "taught them to acknowledge us to be their masters". Nulyarimma v Thompson in 1999, dealt with John Howard being responsible for genocide. 10 point plan; attempted
to reform the operation of native title. Claimed that giving the land over to BHP for mining operations and failing to pursue World Heritage listing for the land constituted a genocidal act against the Aboriginie people. /granted greater security to pastoralists Complainants claimed they'd arrest Howard, Fisher, Harradine & Hanson claiming genocide by the 10 point plan and Native Title Amendment Act 1998. IMPORTANT B/C AUSTRALIA HD RATIFIED THE UN GENOCIDE CONVENTION 1949. 10 point plan said tenancy would extinguish native titles -- complainants said this was potentially genocidal by now allowing them to claim entitlement/title to the land. WARRANTS WERE REFUSED, BUT THE ISSUE OF WHETHER GENOCIDE HAD BEEN COMMITTED WENT FORTH and up to the fed court of australia! THIS WAS DENIED -- THERE HAS TO BE A "LEGISLATIVE INSTRUMENT" TO IMPLEMENT THE CONVENTION -IF YOU DON'T HAVE LEGISLATION TO I MPLEMENT THE CONVENTION, THEN AUSTRALIA CAN'T COMMIT GENOCIDE. As there is NO LEGISLATIVE ACT in Australia implementing the genocide convention. IE: international law on genocide convention doesn't form Commonwealth law! THE MINORITY JUDGEMENT ARGUED THAT IT DID. (Dissenting judge also found that there was "no intent" to commit genocide.) THEREFORE, NOT A CRIME. IN THE ABSENCE OF LEGISLATION, GENOCIDE SUIT WOULD NOT FIT. government had not ratified it; therefore, not part of gov't law.
Otheres argue international law forms an automatic jurisdiction -- e.g, Merkel J -- as these international conventions are considered a form of jus cogens - inviolable/higher law. (e.g, per the Teoh case in 1995.) They attempted to pass a bill on it, but was eventually scrapped in favrou of the International Criminal Court Act in 2002, which declared genocide a crime. (Merkel also said he doubted that there was intention to commit genocide.) WE'VE ATTEMPTED TO STAMP GENOCIDE OUT: in 1948 on December 9th the UN General Assembly unanimously
voted to create the "UN Convention on the Prevention and Puishment of the Crime of Genocide". This Convention specifically follows the 1915 annihilation of Armenians. Number of states t hat have currently ratified this conversion sits at 143 . Genocide defined as: any of the following acts omitted with the intent to destroy in whole or part, a national, ethnical, racial or religious group. This includes killing members of this group, causing serious bodily or mental harm to members of this group, deliberately inflicting conditions of the life on the group calculated to bring about it's physical destruction in whole or in part, f inding a way to prevent births within t he group or forcibly transferring children of the group to another group. (Article 2.) (Article 3) -- anything in this can be punished; genocide/conspiracy to commit g/direct & public incitement to commit genocide, attempt to commit genocide & complicity in genocide. (IE: these war crimes extend to the reach of nazi guards. FIRST DRAFT OF THE GENOCIDE CONVENTION ORIGINALLY INVOLVED "POLITICAL KILLINGS" -- i.e. killing
people who didn't hold the same political views as you did, although people were politically opposed to this (USSR) -as these decisions are political tools are politicised; the state/agreeing state's agenda is also a key element in what their final decision may be, not merely the attitude that is "right". Recognised that "at all periods of history genocide has inflicted great losses on humanity" & international cooperation was needed to "liberate mankind from this odious scourge". Robertson; "there can be no doubt that the rules against torture has evolved into a prohibition which every state has evolved into a jugs cogens prohibition which every state has a duty owed to the international community to outlaw & punish."
TORTURE -"The moral basic right of all is that to life -- guaranteed by Ariticle 8 of the Universal Declaration. At it's highest -- when the State takes life pursuant to a policy of genoice, this right is so forcefully protected by international law tat it justifies armed intervention by other states, whether pursuant to Chap VII or by way of a unilateral humanitarian mission and the ICJ may order provisional measures against a government under the Genocide Convention. The right to life stands as fundamental and non-derrogable in all human rights conventions, the barrier against all forms of summary execution without a fair trial, whether of soldiers shot as they surrender or dissidents assassinated by death squads. This right is the basis for imposing duties on the state to investigate & prosecute any of it's agents reasonably suspected of unlawful killings. Also: no-one shall/SHOULD be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
IE: it's evolved from a prohibition which every state has a duty owed to the international community to outlaw and punish. TOMORROW: cover genocide & e.t.c.
POWERPOINT TWO HUMAN RIGHTS often misapplied; what are RIGHTS and what are HUMAN RIGHTS?
Human rights; tends towards prioritisation -- what right wins out over the other ? Philosopher Hegel says "tragedy is not whether evil wins out over good"; rather, "it's a conflict between right & right." IE: varying beliefs. THAT'S where the prioritisation lies -- Nazi Germany must have thought they were doing right; other people thought they were doing right. Arrndt -- the rights of man meant very little or nothing at all to refugees, stateless persons, outsiders within the boundaries of an alien state Concepts; rights, duties, "universal relativism". What does the duty to human rights entail? Put that in a broader context: obligations, rights, e.t.c. Universalism also highly contested -- tempting to think our community's values are universal; really, it might just be a fiction. How do we implement human rights? There are states that abide by human rights protocol but IS it possible to measure? It's so sterile, we might not ACTUALLY know what we're talking about. What kind of rights deserve to be described as human rights, to attract greater protection & respect? -civil/political more important, or socio/economic? What is the significance of this distinction? 1960s; conflict between "First World" - lib capitalist, "Second" -- Communist economies in Cold War -fundamental disagreement JUST about and between political & economic rights between USSR & America. USSR thought every person would have a state-sponsored car & flat; live an "equilatrian lifestyle", but you weren't meant to get RICH. Whereas the US thought you should accumulate money and get free speech, e.t.c. SO US emphasised political rights; to vote, free speech. Commies emphasised economies, not political freedom. SO the War was based upon the rights people had.[civil + political] SO which rights should be more protected -- economic safety, or political safety? HOW do you define a human right & HOW do you resolve it? What if a person's right is in conflict with one another? e.g; the dirty bomb scenario, if there's a terrorist who may have vital information that might yield up information about a bomb, weapon, PLOT. if it's not found then a certain amount of lives will be lost. SO, DO you torture him for that information or not. HOW do you enforce it -- some notable international jurists in the US who claim "local enforcement is always the best means". e.g; court structure, e.t.c. (ICTR? DID become fundamental there.)
DIGNITY; Article 1 of the UDHR, 1948 [drawn up post WW2]: "All human beings are born free and equal in dignity & rights." Appears in numerous convention; e.g, International Convent on Civil & Political Rights. [1968] -- e.g, identity, control, agency. Issue of WORTH is most important here. Roman scholars related it to "rank", your station as a human being; Dignitas hominis. If your station as a human being is violated, then you've lost your dignity. "wORTHINESS -- THE OUTER ASPECTS OF A PERSON'S SOCIAL ROLE" -- stripped of this, your esteem, e.t.c, is stripped. (should be form of redress if "injured".) "Worthiness, the outer aspect of a person's social role which evokes respect + embodies the charisma + the esteem presiding in the office, rank or personality." Main point; should be able to "form your own way of living". -- Google storing massive amounts of data, same goes for Facebook, e.t.c; should be alarming as it's an "affront" to your dignity -- it turns you into a suspect, strips you of the integrity or merit you're implicitly given when you create a personality on the internet. If your agency is affected, then that impedes on your dignity. ANYONE Bwho intrudes on someones inherent freedom violates that inherent dignity -- E.G, euthanasia. (But once you go through state- assisted suicide, will the state start forcing those on you?) "Those who speak of dignity must respect the freedom which humans need in order to form their own opinions and act upon them." (IE; can't impede because THAT'S hampering their agency; a form of coercion.) - Anyone who intrudes on someone's inherent freedom violates that person's inherent dignity; and in an essentially cylic world, this'll come back to us. Every form of coercion which significantly restricts a person's freedom is an attack on human dignity. -Varies from culture to culture, this term of dignity -- an African's society of dignity might not be a Western idea of dignity. (cultural relativism).
Some claim states should dictate morality, e.g when it comes to sexual norms -- that is in fact, an affront on morality. BUSINESSES AND GOVERNMENTS ARE INSTITUTIONS; NOT HUMAN; they are COMPRISED of humans, but an executive decision will be politicised in their interests (think the Communists, think the Nazis.) Again: rights should be based upon widely accepted social mores, not the morality of parties. (read this: http://www.kongregate.com/forums/9/topics/300862 ) Dwarf throwing; Wackenheim in 2002 - banned in France, ban challenged, upheld by the equiv of Supreme Court in France, went to the U.N, went to America in 1989 and upheld by the UN Human Rights Committee. Affront to human rights/dignity to encourage dwarf throwing. UNHRC (body of 18 experts that meets three times a year to consider the reports submitted by it's 162 member states) has no "binding" powers, but it has persuasive ones; can "shame" the authorities if they were to overturn the ban. (much like the general assembly) -As humans, we have certain inviolable rights - comes down to jus cogens, too . HR belong to an individual as a consequence of being human; entitlement accorded to ALL humans. Not granted: entitles to enjoy simply b/c we are human. DEVISED FROM THE THEORY OF NATURAL LAW, THAT THEORISES THE EXISTENCE OF NATURAL RIGHTS. Diff between natural law and natural rights ; not always the same thing. Natural rights have basis in natural law, but natural law lawyers might not believe it in the same way. NATURAL LAW V.S NATURAL RIGHTS HUMAN RIGHTS; belong to an individual as a consequence of being human -- entitlement accorded to all
humans; simply entitled to it by virtue of being human. Derived from the theory of natural law, which in turn theorises the existence of natural rights. Natural law concept of rights: Based on the concept of universality. There are problems, but many natural lawyers argue that there are CERTAIN UNIVERSAL rights to be had. These natural law rights are inalienable : CANNOT be taken away by any means, CANNOT be surrendered. E.G; the RIGHT TO LIVE --- you cannot just willingly give up your "right to live". CANNOT be abridged; can't be qualified to any specific reason, modified or adjusted; the right not to be tortured. Dignity, again, central. (thanks, Kant!) Centred on the idea of human reason; if we have the FUNCTION and facility to reason, that makes us "better than the other brutes of the earth" -- allows to understand the innate truth of our rights and interest. (Staub + Frohm would disagree!) Began in Greek political/literary theory -- 500 BC. Natural rights also purportedly of "unknown provenance" -- Bentham said he didn't know if they came from God or or from "nature". Content "unknowable", if these rights ought to have stemmed from "nature" then their content was "unprovable" & "unpredictable". Bentham's arguments responsible for natural rights falling out of fashion in the 19th C & 1/st half of 20th C. Would re-emerge under the title of human rights alone. -Sophists -- taught law -- laws of state & nature & virtue. Made "arguments for the sake of argument." Doesn't NECESSARILY prove a point (sophism.) BOTH above the state; state's laws need to conform to natural laws. Plato said it was unprincipled for these to receive payment for arguments. Need to distinguish a law of state & a law of nature. Law of state CANNOT EVER effect a law of nature: if something is understandable in the "inherent order of things", law of state should IMITATE that -- REFLECT that. Laws of nature are aboe those of the state. Laws of state must conform to laws of nature. OTHERWISE INVALID. UDHR example of mutable natural law that cannot be violated by state law; if a state law attempts to violate it, that's invalid. e.g law will distinguish between Barbarian & greek, but natural law won't; same goes for refugees; we distinguish ourselves based on colour, e.t.c, but universally, we're just human. Sophists would argue this claim is "untenable". Plato: "Laws are only necessary when reason fails". Law of reason is the "ideal law". -- key natural law idea -- ideal law is THERE, simply need to identifyy it. this is where the idea of rights & obligations stems from this idealism; something that is inherent and should be there. Positive law/state-made law is weak; these state-passed provisions can defy reason. (i.e.; positive law is necessary to keep people in "check" because we are all inherently wicked". But having them says we are WEAK because we can't abide by certain provisions. + also allows for politicisation.) Aristtle says that natural law is an "intention" of nature -- i.e., you understand discover what is inherently natural. We are MEANT to understand & abide by these. -Critics of natural law tradition been many -- SOME ARGUE AGAINST THIS; think of Jeremy Bentham (utilitarian) who relates it back to the French Revolution with weapons e.t.c -- claimed that it was "vague and abstract nonsense". Bentham further pointed out that all the rights in the French Declaration, which championed natural rights, right to liberty, e.t.c, would be limited by law, thus begging the question of what content the law needed to have to be compatible w. liberty. Added that no-one was born free -- parental authority, then work authority, e.t.c.
Could only create rights through PARLIAMENT: the idea that there's something inalienable for us is odd. Parliament creates laws; if there's a right, it'll only exist through parliament. (i.e; can only be promulgated.) Attacked William Blackstone (talked about natural reason & natural right; not a conservative, but regarded by American revolutionaries as a forefront for these discussions) & the French revolution for the idea that there are these "inalienable rights" Says People are motivated by pleasure -- therefore, what was of interest to them was of maximum interest and might not have contributed to other one's interests. Can also only be pushed to do things by the command arm of law. only good law maximise human pleasure & minimises human suffering. (Hedonistic; like Kant?) Bentham: doesn't argue thatt there needs to be a hierarchy, but that it's an IMPERICAL view -- CAN'T SPEAK OF LAWS/RIGHTS THAT DON'T EXIST UNLESS THEY'RE PASED IN WRITING BY SOMEONE. Wendell Holmes sees it as natural force; a "naive state of mind that accepts what has been familiar and accepted by them, their neighbours as something that must be accepted by all men elsewhere" (1920). Universality CAN'T necessarily exist. W-H says nature doesn't have a particular intentional scheme/course at all. (would fit into post modern beliefs that there ISN'T + CAN'T be a meta narrative to the world.) + Has it's limitations -- what IS nature? IS there human nature? Is it simply socially constructed? Objective standard of rights; set standard we can verify and identify; it's NOT what you think. CANNOT EXIST be modulated -- can't be dependent upon what you think/subjective. It's what EVERYONE thinks. Therefore, no. -- impericism; don't know what you're talking about when you can prove it is another detractor. Utilitarianism & others forced natural law into retreat. & also imperialism (impericism) which came from colonialism in the 19th C; difficult to talk about human rights/rights of people -- as the only right there was conquest. THAT the central right discussed. Hard to talk about human rights with imperialism; it assumes conquest.
So from 500 BC - Middle Ages, reason in rights & obligations was paramount. Lots of complications in between, however. Reason underlines EVERY SINGLE HUMAN RIGHTS INSTRUMENT that's been created since the 18th century. --REASON CAME TO BE DISPUTED ALONG W. LAWS OF NATURE; Marx e.g The Origins of the European Convention of Human Rights says very little on natural law/reason. Encyclopaedia of Human Rights -- nothing of human nature.
CERTAINLY VERY LITTLE DEBATE ON NATURAL LAWS/RIGHT today. -Robertson: universality came from Roman empire. Universal premise of "international human rights law" comes from the "laws of the people" -- the just gentium. Has to be seen as a product of this. SOCIAL MORES, in other words. Paved the way for international body law; when we talk about the body & how it's structured, can see it as a product of the international system as developed by Roman empires. When we speak about "rights per se" they should not be confused with law as such; it here's difference, one is legislation and the idea of a right "per se". (WTF.) One is enactable, one is less so? Roman law & Greek law did not make these distinctions clear. (One is less tangible, or they're often mixed; often spoke in terms of obligations, e.g Bible -- "thou shalt not kill".) Rights/obligations often implied in religious codes but worded as obligations; commands; e.g, in the Bible, the Moses law, e.t.c They were COMMANDS, DUTIES -- in a way, OBLIGATIONS (with rights embedded in
them) ALTHOUGH NOT SPECIFICALLY WORDED. NATURAL LAW INHERENT HERE, BUT NOT RIGHTS. I.E; focused more on positive obligations. More often/could only be implied in religious codes, never articulated; "Thou shalt not kill; right to life." --natural law + middle ages. St Thomas Aquinas refs natural law; calls law an " ordinance of reason directed towards the common good". Aquinas says GOVERNMENTS SHOULD GOVERN FOR THE COMMON GOOD; we have an entitlement to this. (no politicisation for your personal interest.) These comments passed in the 13th C. Idea of reason is combined with that of "common benefit" -- no laws should be enacted for private profit. (530-560 A.D.)
• Law as “an ordinance of reason directed towards the common good and promulgated by the one who has the care of the community” (St. Thomas Aquinas) Aquinas: "typologies of law" -- eternal & divine. Eternal law relates back to god -- it is the unchangeable effective decree of God binding the whole creation to the fulfilment of it's purpose. Aquinas -- human beings have the capacity to obey or disobey. We have a special means to do this; we can understand what precisely we are doing -- we are aware of good and bad. Persistent trend in even Aquinas's 13th century is in duties rather than rights -- Aquinas stresses "obeying the law", not recognising and respecting other people's rights. Comes back to role of reason ,too. -We have a reasonable understanding of natural rights and obligations because we are HUMAN; this is a kind of course we understand & need to respect. 17TH C -- state became key figure of international law. "Fairly recent phenomenon." (post French Revolution.) Athenians did not follow into this state model. Statist view of rights born in 17th C. Also known in "Westphalian system of rights." Westphalia treaty signed in 1648 -- ended the Thirty Years War in Europe (conflict between Catholic and Protestants). Agreement made between the princes of both faiths that borders would be respected, and within them, religions would be supreme. IE they began to divide up STATES and PEOPLES with different views, upon which others couldn't impinge. [ pope didn't like this.] CAN MAKE TREATIES + BREAK TREATIES but subjects weren't recognised here; sovereignty was total here. Westphalian: MADE DETERMINATION OF RIGHTS A MATTER OF STATES. States are the only subject of international laws; not individuals. Has been challenged. Sovereigntiy grew; States could make treaties & break treaties, but human subjects had no right against the state (not recognised?). You would have certain rights if you travelled elsewhere, as a "representative of the state". Seems flawed.
Here, states were sovereign; states were kings; states made the laws and the rules. Humans simply have to sit underneath them. -- "RIGHTS REVOLUTION" "Liberal rights/inroads" -- i.e. the way we began being seen again -- originated in the Middle Ages took place with the Magna Carta in 1215 AD. Significant constitutional document in European history & common law history in turn. King John took over from Richard the Lionheart; John exercised arbitrary power. Barons felt/said this arbitrary power needed to be "controlled" -- first time monarch was told to answer to another power, which was Parliament. This parliament was made up of barons; crude; they would have had their interest. First time political rights emerges - in terms of us getting our say. First doc forced onto a King of England by a group of his subjects. First principle of Magna Carta: "limiting the power of the king." Magna Carta -- "King is not Absolute". No man will deny or delay justice. Right to be judged by one's own peers; foundation of jury/ phrased as "no freeman shall be punished/judged … but by the law of the land." Included various clauses; barons could at any time meet & overrule the will of the king if he did not meet or somehow defied the provisions of the Charter. Also; "to no man will be sell to no man will we deny or delay justice of right." HOWEVER they just wantd to overthrow him, let's get real. Robertson claims it was signed by a "feudal king feuding with thuggish barons who was forced to the accede to their demands." We see this in Article 61 of European Convention on Human Rights. Affirmed the rule of law. -Contest between "natural law" & "state tradition." despite Sophists claims state law had to adhere to natural law. Positive law shouldn't have to be there, but if it is, it should reflect natural law. ATTACK ON NATURAL LAW CAME IN 15TH C. Preferred reasons of state & laws; said we're not particularly bright, but prone to brutality. "Civil laws are nothing other than verdicts given by ancient jurists, which, reduced to order, teach our present jurors to judge." -- Macchiaveli. (i.e; there's reason in them that we can adhere to, but someone just CAME UP with it; not a "norm" inbuilt in our dna.) -- just the law of past jurists. Laws of command. -Assumes mankind is wicked; when given the opportunity, we'll be wicked, rather than reasonable. "Hunger and poverty make men industrious, laws make them good." - Machiavelli says we should abide by these under the watch of a state. // also fits with Plato's impression of positive rights/laws. "Men never work any good unless through necessity, but where choice abounds and one can make use of license, at once everything is full of confusion and disorder. -State and right is fractured in 16th Century. Machiavelli cynical along w. Thomas Hobbes. (Hobbes also commented on genocide; men innately drawn towards power, e.t.c) Hobbes: law is "one thing" rights, "another". One of the most important conceptual (if not simplistic)
features. "Social contract"; ; we are entitled to expect to be governed in a certain way, and entitled to have certain rights protected. (which also means we give up certain values too Without some understanding with our governors in regards to rights, we'll have a very brutal life. We need LAWS and we need the government of the day to protect those liberties. IE: we surrender some liberties for the military's use, e.t.c; surrender our right to bear arms for the military of the day, but in turn are entitled to protection. THIS is a social contract. IE; social contract between governors and governed to protect natural rights. (This distinguishes between the state and rights; laws per se and rights per se in this.) Human beings are not social beings whose natural state is NOT political. We are animalistic; we serve to protect ourselves. . Hobbes misunderstood: he wasn't AGAINST natural rights or a supporter of despotism, but he did break the link between God and state. Said state has to behave in a certain way. (Desacrialized the state). (Plato: 432 AD) CONSENT OF THE PEOPLE MATTERED MORE. Before this, monarch was thought to be governed by divine law -- God appointed kings. Hobbes said there was no such thing despite Aquinas' view on divine right: PEOPLE appointed their kings/and leaders. People only in power by virtue of our consent, not divine right. If we don't consent we execute/imprison/exile them. DIVINE RIGHT: a fiction. The one thing that mattered to us is self preservation; we'd get this in a good gov. OVERRIDING NATURAL RIGHT. DISTINCTION BETWEEN LAW PROPER & RIGHT PROPER: We have to distinguish between the idea of a right and a law, says Hobbes. Right: liberty to do & forbear.
• Right consists in liberty to do or forbear, whereas Law binds to one of them; so that law and right differ as much as obligation and liberty -- Leviathan, Hobbes. Law: binds to one of them; law and right differ as much as obligation. OBLIGATION/command is one thing, liberty (what we should be entitled to do) is another thing. --Revival of interest in natural law in the 16C-17C WITH THE EXECUTION OF CHARLES I in 1649. e.g unparalleled, very first example of King Charles I in 1649. Battled against parliament of puritans, including Cromwell & others. Made it clear he had not divine authority to rule britain. Charles lost; tried & executed. Argument: "said as the king had no peers, he could not be tried by anybody. (He was the king! He was above you!") Divine right challenged; the king was the law was ignored. Impunity was thereby challenged -- you cannot commit crimes as head of state and go without punishment. Impunity was used and challenged from hereon in. TYRANNY HAD TO BE HELD TO ACCOUNT: LEADERS TOO. (this would later surface in state sovereignty too.) --
Augusto Pinochet; Chilean dictator in 1973. Arrested in London in 10 October 1998 for all his crimes against humanity in ahouse of lords when visiting Britain. Trial of Charles the First enabled this; meant that no matter where he was, he was to be held responsible. (whereas zambia was the first to extradite akayesu in 1998.) -Locke; liberalism; social contractarians(comes from order of "nature") shifted focus from duty (natural law & human beings subject to moral law) to rights. Consider rights as serious, MORAL FACTS -- not just natural law, but natural rights. Expands upon this in the 2nd Treatise of Government (what he wrote). He was influential of the American revolution.
• Locke asserts that men in the state of nature are free and equal, and at liberty to do as they wish— but only “within the bounds of the law of nature.” v.s Hobbes beliefs man wars against man. Liberties & expectations we have of one another; we can't simply do as we wish, but we almost respect the rights of others as is expected. (this is an obligation in itself) IE; even in nature, humans bound to respect limits regarding others. This comes from natural law, too. V.S Hobbes; when mankind wars against mankind, WE still have to RESPECT one another's entitlements. (i.e; not a pessimist.) Locke firmly linked to American Revolution; Declaration of Independence links to this; makes a natural law statement -- "we hold these truths to be self evident", e.t.c. (THIS IS NATURAL LAW STATEMENT: IDEAS THAT WE ARE INALIENABLE< E>T>C>). This reappears in the French Declaration of the Rights of Man in 1789. (When this movement resurfaced.)
• “The state of nature has a law of nature to govern it, which obliges everyone; and reason, which is that law, teaches all mankind who will but consult it, that all being equal and independent, no one ought to harm another in his life, health, liberty or possessions.” (J. Locke)
• Clear on rights to property • The duty to respect others comes from natural law • Forfather to American law; American Constitution is a natural law document. (Marx challenges the rights of men. Prefers economic rights; has led to issues in the past, e.g with USA.) NATURAL LAW: NOT THE SAME THING. LAW:conglomerate of views of how it should be conceived, but not necessarily how rights are realised. From the 17th century it took a plethora of scholars to start constructing what we understood as natural rights. Also some such as Hobbes imply that some have to be given up.
-Distinction between "liberties" & "rights" -- we only have liberties, as Aus doesn't HAVE an ingrained constitutional department. Alternately; you can write to your parliamentarian, but you don't have a right to a reply/ expect it. Other key docs; French Declaration of the Rights of Man 1789 - also led to the three generations of right; liberty,e gality, fraternity. Thomas Paine: role in the American Revolution; Author of Common Sense. Influential in the drafting of the Declaration of Human Rights. -- "some writers have so confounded society with government as to leave little or no distinction between them, whereas they are not only different but have different origins. Society is produced by our wants, and government by our wickedness. Former promotes or happiness POSITIVELY by unitingg our affections; latter NEGATIVELY restrains our vices." "Governments might be necessary, but only necessary as a wicked phenomenon." -- SHOULD RESTRAIN GOVERNMENT ACTION. -- Bentham; believed that natural rights were "nonsense upon stilts" that they didn't fully exist or properly exist for that matter; claimed that laws and rights needed to be ratified as we were able to follow the command of law (thinking of positive rights). Believed if there was nothing to back natural rights up; indeed, if it wasn't objective and couldn't be ratified, then it didn't exist!
POWERPOINT THREE Natural Law: stems from the utilitarian movement. Comes from the pleasure principle; 'you maximise the pleasure of individuals for the greatest good.'
---IMMANUEL KANT -- v important to human rights & international law, credited w. laying the groundwork for the modern understanding of human rights as an ethical practice: "Right to freedom" & "from tyranny" fundamental; to a certain right you can't change these certain, incontrovertible rights. Positivism critic -- things can only matter if they can be verified; if you can't prove it, they don't
exist, although you can't prove natural rights. (Hobbes?) Bentham's attack is utilitarian. & also imperialism which came from colonialism in the 19th Century; difficult to talk about human rights/rights of people -- as the only right there was conquest. THAT the central right discussed. Hard to talk about human rights with imperialism; it assumes conquest and assumed subjugation.
--RIGHTS IN SHORT ARE ENTITITES WE CAN POSSESS; claimed against others (e.g Hohfeld), misunderstood + multiple in nature. Glendon -- our rights talk in it's absoluteness promotes unrealistic expectations, heightens social conflict + inhibits dialogue that might lead towards consensus, accommodation + at least the discover of common ground. Rights NOT amen of social conversation; ends it rather than continues it. VARIOUS LEVELS; POSITIVISM/UTILITARIANISM/19TH CENTURY. Hannah Arendt (1906-1975)-- "rights are fundamentally connected to the state -- meant very little or nothing at all to refugees, stateless persons, outsides within the boundaries of an alien state." (1906-1975) our political liberties within the state. fundamental rights exists within the political community itself; the right to LIFE. TECHNICALLY SPEAKING it's a violation of international law to deprive individuals of their statehood, but it's the state -- that YOU BELONG TO -- to define your rights. NO SUCH THING AS INTERNATIONAL RIGHTS/STATESMANSHIP -- only stems from the authority of the state; only can exist within that community. (i.e; our right to rights is based in the political community we are a part of. so if we're in a country that doesn't have a right to rights in this level, then we're not technicaly entitled to it. Lotus principle relates to this. Citizenship is defined by definition, by the state. May be national and incontrovertible but only come from the authority of the state; our "rights" only exist within that political community, and only that which we are a part of. SO our rights are limited; controlled by the political party we are a part of. (Lotus principle would back this up.) --Realpolitik rules; a contemporary movement in the 1900s. Robertson -- evolving international law, but has "inherent deficiencies" -- REALPOLITIK (realpolitik: politics/diplomacy based on power and practical/material factors.) Constant problem of state supremacy -- "Realpolitik" -- practice of ruthless political expediency by the states; politics based primarily on power and on practical + material factors Had good and bad in the 19thC-20thC. REALPOLITIK IN THE 1900S -- saw the emergency of cruel warfare but also saw generation of international humanitarian law, laws of armed conflict ; e.g. Hague Conventions in 1899-1907 (Laws of Armed Conflict + Humanitarian Law) (series of international treaties + declarations that were among the first formal statements of the laws of war) still valid, Laws of Armed Conflict or Humanitarian Law -- limitation on suffering during war time; international structures in place restricting conduct of states (described what could, should, shouldn't be done in war. If breached/ violated, will put state in questionable reach. E.G; chemical warfare. Hague Conventions properly outlaws this. In 1899 & 1907 many were
interested in creating international structure of law that would restrain the use of force by key powers. (Quite a few others.) Vital article, Hague Convention:"the right of belligerents to adopt means of injuring the enemy …" Makes it clear that one cannot use any type of weapon/inflict mass suffering so as to obtain one's goals in war. Other prohibitions -- v. much a do as you would have done unto you kinda thing. "Sentiment/legal approach to rights." Article 22; the right of belligerents to adopt means of injuring the enemy is not unlimited. Article 23: prohibitions on using poison or poisoned weapons; prohibitions killing treacherously individuals belonging to a hostile nation or army.
--World War I 1914-1918; created interest in trying to draft docs of what they considered rights; not necessarily the human rights we consider important now, but rights like security. League of Nations, 1919; said use of force had to be controlled e.g w the Kellogg-Briand Pact in 1928. Use of force heavily circumscribed right. Ended in WW2; becamee redundant; Robertson argues it's "too conservative and half hearted". LON forerunner to the UN in 1919 onwards (to 1946); HOWEVER, was amply too conservative/halfhearted. "More progressive and more developed." - Kampmark. -- Structure of punishing aggressors THAT LATER developed into a model like the U.N; of the Allied powers alluded to rights and certain obligations of states; a "collective security" that they were entitled to -e.g if a state wanted to be an aggressor, ought to be punished. LoN failed to determine HOW these states should've been punished. (no structural powers) Said there should be international police force, but those who were part of the league weren't interested. Tried to impose sanctions. This idea brought about the idea of "collective security". During this time, attempted to define what international citizenship might be-- do people need documentation, e.t.c? American isolationism -- the UN tended not to get themselves involved in these matters; avoided alliances with other nations in order to avoid being drawn into wars not related to direct territorial self defence {broad foreign affairs doctrine held by people who believe that their own nations i best served by holding the affairs of other nations at a distance.} --1920s & 1930s; a new "international morality" booms {about/around WW2} 1928 States attempted to abolish war, foolish at that seems -- produced the Kellogg-Briand Pact: France & the United States to abandon war as a way to settle disputes. War only to be used in very limited ways. SIXTY COUNTRIES SIGNED UP TO THIS. Pact failed, enforcement weak, desire to act by it weak. Certain Axis powers violated the Kellogg-Briand pact with illegal aggression, but the LoN failed to stop these aggressors (Germany, Japan, Italy, Soviet Union.) - Concerned about the deprivation of citizenship for Jews. League of Nations -- Haiti -- raised the fact that ethnic minorities should be protected in 1934, but it was dismissed. Other rights were being considered more; right to security, to be free from war, e.t.c.
REJECTED. Had super ineffective sanctions against aggressor states. --This world war 2, time, however was "The Age of Extremism" -- extreme ideologies born such as Nazi Germany. (1939-1945) Doctrine of HR challenged as "nonsense" -- attacked by fascism & communism. Regarded as individualist nonsense as Commies. Human rights "bourgeoisie."/middle class morality. Argument against this from Commies was that it " concealed the nature of the economic relationship between the parties". IT'S FINE TO TALK ABOUT AN INDIVIDUAL RIGHT, BUT IT DOESN'T MEAN MUCH IF THE ECONOMIC DISPARITY IS NOT ADDRESSED. Others; "collective rights generally trump individual rights". Fascism -- saw it as a "liberal conceit."/ "middle class morality". Liberalism in retreat; mild mannered but progressive, no hard ideologies -- they swing but they also compromised. -- "RIGHTS MENTALITY" HG Wells, Barbara Wootton, JB Priestley tryring to encourage a declaration for human rights; forerunner for the UDHR. (wELLS PG 30 CAH) -- included ideas like sufficient education to make the person a useful and interested citizen; easy access to info upon all matters of common knowledge throughout his life, in the course of which that person would enjoy the utmost freedom of discussion. Protection of property from private violence. Trying to protect rights as they develop. -- INTERNATIONALISM EMERGENCE OF INTERNATIONALISM CREATES THE IDEA OF WHAT WE NOW SEE IN TERMS OF INTERNATIONAL COVENANTS-- socio cultural economic rights, civil political rights. (albeit from the 1968 charters) Grows out of sentiment from Franklin D Roosevelt from 1941 who says we need to uphold FOUR KEY FREEDOMS. NOT NECESSARILY RIGHTS -- more so liberties? "Freedom of speech and expression, freedom of worship, from want + fear.) Also came up with the Atlantic charter: in destroying national tyranny, we need to establish a regime of peace that will afford all nations the means of money & safety w/n their own boundaries and which will afford assurance that all the men in all the lands …" -- FREEDOM OF FEAR. FREEDOM FOR WANT; yu won't starve, e.t.c. Article 6 of the Atlantic Charter: "after the final destruction of Nazi tyranny they hope to see established a peace which will afford to all nations the means of dwelling in safety which will afford to all nations the means of dwelling in safety within all their own boundaries."
BUT we're back to where we are in 1919; LoN failed. We had to have a collectivee security structure -- this happened with the United Nation, with various means of ensuring this would occur. -United Nations: at it's core, interested in collective security.
Principle Five: US, UK, France, Russia, China. POST WW2; began when British, US Soviet + Chinese reps met to draft the charter of a post-war international organisation. Reps of 50 nations to complete the Charter of UN.
(Also has it's core as human rights.) DIFFICULT TO DRAFT; !
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U.S., British, Soviet, and Chinese representatives – meeting at Dumbarton Oaks in Washington in August and September 1944 to draft the charter of a postwar international organization Representatives of 50 nations met in San Francisco April-June 1945 to complete the Charter of the United Nations. (FINALLY CREATED HERE; the Charter remains the most important document. "governs" the powers of the U.N)
• BUT we're back to where we are in 1919; LoN failed. We had to have a collectivee security structure -- this happened with the United Nations.
UN Charter -- human rights or is it in a "different era" of state sovereignty? Because post WW2 the biggest difficulty was impunity w. war crimes -- heads of states and tyrants couldn't behave in anyway they can? Does the UN give any protection? (LOOK THIS UP; LOOK AT IT'S LIMITATIONS.) !
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UN Charter -- signed in 1945 by 193 states which was the foundational treaty of the United Nation; entered into force after being ratified by the permanent five members. “We the peoples of the United Nations” are determined “to reaffirm faith in fundamental human rights." -- Locke
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has a similar permeable to this. Article 1(3): To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion;…
• • These are affirmations of "international law". Is it obligatory? Some of these obligations are only "declaratory" (as per the General Assembly) -- one thing to be properly bound by it/what's obligatory (e.g; look at the way law is formed, the way Bentham says laws need to be properly examined and set out what a person must do, by law.) AND what is simply what you claim must be done -- echoes natural law & natural rights. [ SUCH PROVISIONS DO NOT CREATE OBLIGATIONS ON THE MEMBER STATES PER SE. ] Article 55; to create conditions of stability + well being for friendly relations between nations + well being for friendly relations between nations "on respect of principle of equal rights and self determination of peoples, the United Nations shall promote -- higher standards of living + solutions of international economic, social + health + related problems.
--These also included a universal respect for + observance of human rights + fundamental freedoms. General Assembly/member states initiate studies in promoting international cooperation, social cultural, e.t.c., e.t.c. Robertson says these are not OBLIGATORY standards; should' matter, though, not designed to perform a utopian legal field. Role of the UN is NOT to create heaven on earth -- it's to "prevent us from going to hell".
Certain obligations elsewhere -- e.g, UNSC. When it comes to economic targeting or poverty reduction, these are declaratory intentions -- the U.N does not necessarily act upon this. e. g Article 55 -- but the "self determination of peoples" is NOT declaratory; that's an internationally accepted as being a "fundamental principle of law". The two sort of mingle; elements are binding. The UN's ability to achieve it's charters are more difficult later on -- "higher standards of living, full employment, e.t.c.". MIX OF ASPIRATIONS, GOALS & AIMS. MOST IMPORTANT IS THAT THE UN CHARTER STILL AFFIRMS TO THE RIGHT OF SOVEREIGNTY IN ARTICLE 2 -- THAT STATES ARE STILL SOVEREIGN.
Many will argue that the "state is our problem", a "monster" that we have to deal with. But there is no way to simply "rid yourself' of a state"; therefore, the UN charter claims each state is "equal and sovereign." -- and therefore later on encourages matters like cultural relativism to be impeded? Makes it illegal to resolve disputes by means of aggression (either state against people or people against state, state v.s state.) (Article 23) There are certain exemptions; when you are under attack, e.t.c. Body responsible for authorising intervention is the UNSC -- e.g, Rwanda. "The strongest institution in the UN, but will only authorise the use of force in certain circumstances." -- ONLY AUTOHRISED IN CIRCUMSTANCES DEEMED AN INTERNATIONAL THREAT TO PEACE & SECURITY; think, Rwanda, Holocaust. For example, Syria -- does UN authorise force? Only if conflict threatened all other countries too. International Law comes before all else; Fuji v. California, 1950; held that the Alien Land Law of California had to yield to the Charter of the UN. -- THAT SAID, it's extent is determined by it's member; no obligations to uphold the charter per se. Robertson: made human rights a matter of global concern despite all the UN's problems. BUT did not impose any legal duty on member states to comply w. human rights standards.
UN limited, esp w. UNSC; means for intervention needs to fit certain criterion. -- This case illustrates how the UN's charter might be seen as obligatory; how it might have the force of international law & therefore BINDING. 1950 -- Fujii v. California. Alien Land Law of California ; judges saw it important that this domestic piece of legislation had to comply to the UN's Charter. (Japanese man had difficulty purchasing property in the State of California.) -- extent of it determined by members and while there are no obligations to uphold the charter, per seeee. Admittedly, an aberration, but it can have local ramifications. -UDHR: reiterate natural law sentiment from 1948.
"Aspirational again", says Robertson, "but was imperfect." (CAH around p. 55) Aspirations may be considerable but "well respected" -- many many states have attempted to introduce domestic legislation to mimic this. (ratified; e.g, Aus had to adopt the International Criminal Court.) Article 28: Evreyone is entitled to a social + international order in which the rights + freedoms set forth in this Declaration can be fully realised.
(E.G; Australians don't accept international law until it's ratified in Commonwealth/national law.) --International Covenant of Civil and Political Rights in 1966 v.s International Covenant on Economic, Social & Cultural Rights in 1966; WHICH IS MORE IMPORTANT? - How do you juggle these entitlements? What is more important? Can it be remedied? - Think of the US + the USSR. --
Rights might be misunderstood - NOT immunities, NOT powers. E.G; it's a privilege/liberty that your MP listens to you. Parliamentarian has a non-liberty for you to be heard; she can receive the item but she doesn't have to do anything. Underetanding how rights are effective entails understanding what you are. {HOHFELD} AS WE DON'T HAVE a proper bill of rights, certain things aren't allowed; only allowed to communicate on free speech as a liberty, freedom to speak to people on political matters (minimal scope.) --What is a right? It's a CLAIM -- legal scholars say it's something "you possess." Can't TRANSFER; only you can have it. "Rights" are claims enforceable by law as defined by lawyers -- therefore, liberties are not an option; when it comes to freedom of speech, difficult You HAVE something to claim ( comes back to the property) & can be asserted by law. (Comes back to Hohfeld too.) You expect the STATE to enable you to protect a person's "right" -- a valid claim on society to protect him in the possession of it, either by the force of law." (J Mill.) [like the sociaal contracting mentioned by Hobbs + Locke?] --WESLEY HOHFELD 1879 HOHFELDIAN INCIDENTS -- analyses what rights are; calls them "claim rights".
Says there are varied human relationships and rights; teacher has rights, liberties, limitations, disabilities, when it comes to students -- has the liberty to expect you to study, NOT the right. IE; unconventional rights. LIBERTY/PRIVILEGE -- SOMETHING YOU EXPECT. CLAIM -- A PHYSICAL POSSESSION. POWER -- SOMETHING YOU CAN ENACT EITHER NO YOURSELF OR OVER. ALTERS THE LEGAL RELATIONSHIP BETWEEN THE PERSON WHO HAS IT AND WHO SUFFERS THE CONSEQUENCE OF THAT; E.G, COMPULSIOn.
JURAL CORRELATIVES: Right and Privilege; similar but not the same thing. Privilege and No-right; parliamentarian can't tell you not to send a letter, they just won't acknowledge it Power and Liability (imposition of power, and the liability of it on another) Immunity and Disability (she's free from not being sued -- the queen -- and we're not entitled t o.) --Privilege: if you find something on land. I can only keep it if I don't have a duty to avoid it altogether -- e.g, if it isn't minerals or something, in which case you're not entitled to have it -- because it's for a better good? ALSO a privilege to send a letter to your PM; they have a no-right to acknowledge it. HUMAN RIGHTS is more often about IMMUNITIES and DISABILITIES and POWERS. Government may be disabled from doing certain thing to us; if Australia operates outside it's constitutional power, it's illegal ;parliament cannot force people to be vegetarians, par example.
Claims; entitlement to claim wages is a claim right. Employees have a claim that an employer pay him or her wages. Power -- a ship's captain has the power to order a midshipman to scrub the deck; changes the sailor's situation; imposes a new duty upon him and so annuls his non-right.
Immunities; Aus Parl cannot force people to become vegetarians b/c the Aus gov't lacks the ability to alter the legal relationship of Aus cuts in that way -!
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“A person who says to another ‘I have a right to do it’ is not saying that … it is not wrong to do it. He is claiming that the other has a duty not to interfere” (J. Raz, Ethics in the Public Domain, Oxford: Oxford University Press, 1994, 275) -variation upon these rights, Hohfeldian analysis. Rights, in short, are entities we can possess, what we have.
CRITIQUE OF RIGHTS: Glendon said "our rights talk in it's absoluteness promotes unrealistic expectations, heightens social conflict + inhibits dialogue that might lead toward consensus." -- NOT A MEAN OF SOCIAL CONVERSATION; ENDS IT RATHER THAN CONTINUES IT. Mind -- where there are rights, will be litigation.
ARENDTIAN CONCEPT OF HUMAN RIGHTS: CAN ONLY STEM FROM A POLITLCA COMMUNITY. Bentham would back this up, too; doesn't believe it's "born within us." Emergence of humanitarian law & law of war; conventions began to evolve for rights of noncombatants, e.t.c. (check out Robertson's chapter on laws of war?)
POWERPOINT FOUR RECAP: " every rights relationship complemented/supplemrnted by a series of other rights relationship". - e.g Hohfeldian rights, claimed against someone else. 'Overemphasis on human rights causes us to cease to develop -- insular -- creates a skewed impression of realising other things, such as obligation. Can't appreciate a right w/o understanding where the obligation comes from."
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“Our rights talk, in its absoluteness promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations…. In its insularity, it shuts out potentially important aids to the process of self-correcting learning. All of these traits promote mere assertion over reason-giving.”
For example, can we understand the rights of a child w/o understanding the obligations of the parents?
Rights not a means of social conversation -- needs to be held "in line" with a "whole series of other issues of discussion". Where there ar rights, there will be litigation. (Glendon) -- Talking from a litigious perspective, e.g, how to sue, where to be sued. Doesn't properly examine it in terms of say, Hohfeldian rights, but does it "spoil" us -- does it give us a chance to be OVER entitled? Litigation that protects us might also mean that we skewer away from the obligations we owe to the community, to human nature. Richardson, post-Watergat: "Obligations transcend rights." Responsibility takes priority over justice -- DEPENDS UPON WHO IT IS, I SUPPOSE ? HAVE TO BE RESPONSIBLE BEFORE YOU ARE JUST -- A J Milne, 1968. (Mostly over governments.) Janowitz -- "Citizenship a balance between rights and obligations." !
Ultra, rights-based individualism may have its own detrimental consequences: -- i.e, if it's litigious it'll get kind of crazy. Aus: focuses on specific areas,
not on a whole. • • -- WORLD ORGANISATION: "Human rights can only be obtainable at a global level in very limited ways. GLOBAL EMPIRE v.s UNIVERSAL EMPIRE is diff;some believe a universal empire looks like an imperialistic project. cultural relativism? IMMANUEL KANT: "WORLD CITIZENSHIP" also spoke of the possibility of a WORLD GOVERNMENT. (Also spoke about international morality in the 18th C). *look up that hedonistic morality.
Law of Federalism: "Commonwealth, states, local -- municipalities." He thought of a global regime with "breakdowns" -- separations, different bodies, e.t.c, a head e.t.c that moves on. Federalism also allows a constructive of republicanism; i.e doesn't have a monarch, but involves a DIVISION OF POWER; a check and balance (what our system is MEANT to have.)NO rubber stamps. you have gate holders! For example, in Australia, our executive arm has enormous powers B/ C the executive is effectively in power: this is NOT following the rule of republican. REPUBLICAN MODEL: president/prime minister is separate.
-- World Organisation: League of Nations came out of the end of WW2 -- some believe it wasn't intended as a "world government" -- that it was limited in world governance, whereas others argue it wasn't given enough power to "fulfil it's mandate/duties". (Can there be a global international legal system w/o the power of punishments ? UNSC is still limited, after all.) W/O the power to back up force, it's pointless. "Call for government, also a call for tyranny." -- CULTURAL RELATIVISM, IMPERIALISM, AN "IMPOSITION". Some prime ministers argue that it should be a selective member of the U.N -- why? --During WW2 -- "one unified/indivisble world" -- by republican presidential nominee, Wendell Wilkie. (1943). (Nominee: 1940.)
"An internationalist". LON not strong enough: did not have enough resources and did not have enough effective sanctions. "Best way of peace is through world government" -- best way to observe human rights is not to allow states to do what they want, but to have one world government. -- This led to the unified world, single political system, e.t.c. -CHALLENGES THE WESTPHALIAN SYSTEM (1648, ended the Thirty Years W ar, Westphalia
Treaty): each states are "equal and sovereign" -- protected under UN Charter, Article 2. "NO STATE SHOULD INVADE THE OTHER WITHOUT GOOD CAUSE."
Also that states are the supreme right bearers in the international system. STATE -- "only truly legal competent being." E.G; SOVEREIGNITY IN A UNIVERSAL SYSTEM MEANS THAT IT'S SURRENDED UP TO A SUPER/SUPREME GOVERNMENT. Australian states claim that their sovereignty is impaired because the Commonwealth has invaded their legislative power. World government also considered "undesirable" -- Kenneth Waltz; "creates permanent conflict/ permanent civil strife." Would promote wars B/C international laws might not be in allegiance/allied to what a nation/state would want. CAN IT BE DEMOCRATIC ? "Impossible" v.s "global governance should be organised democratically" (Young, 2000). example of a unified/international body; European Union demonstrates how it's not very democratic; while states have veto powers, a legislation on what's a ppropriate in sausage meat and how much may be considered "meat. EU once passed restrictions on this, but this isn't a "democratic" measure -- it's "government by decree", whoever decides the most. Depends on which part of the EU it's operating from.
Comparison: US govt can't tell the states to abolish the death penalty; the EU can. -*Have a series of loose organisations that involve the U.N but we have a series of other bodies, e.g; the UN Health Organization, World Bank, International Monetary Fund. IE: they ARE looser. Slaughter (2004)- "World government w. teeth is undesirable" -- having it is impossible so we're wasting our effort; we should focus on "forms of collected organisation -- regional governments, regional bodies like the EU, but looser -- states to be disaggregated & networked; can't speak of these states AS states, but they're parts of a global unit that aren't uniform in any way. IE: we should just attempt to advance the models we have now and try to incorporate degrees of corporation through various levels -- "information, enforcement & harmonisation networks." -- Schmidt (1888 - 1985). NAZI SCHOLAR. Idea of international morality policed by the LoN using sanctions, punishing states, e.t.c, is "dangerous". Global government; global police force, you are ENCOURAGING wars. it's like police encourage burglars. Presence aggravates ? Rhetoric could be applied to drug users. ENCOURAGES violations. Schmitt proved in this: the League of Nations failed and a world war broke out -- the League's intention to prevent war DIDN'T WORK. Schmitt: "if you give a body sanction making powers; the power to wage war, e.t.c, you are encouraging conflict and not stopping it." Are humanitarian conflicts ever feasible & enforceable? Schmitt doubts that. --UNITED NATIONS:
Began in World War 2 in an alliance against Axis powers by Roosevelt, e.t.c. (1939 - 1945.) Victors of WW2 would create a system of "governance" -- not government, but governance centred on the United Nations. Dumbarton Oaks & Yalta Conference in 1945 to determine outline of post-war World organisation. Created centrally -- the UN Charter, the UN Security Council. Victors of World War 2 would be the key founding members of the UN. ' The US would be present in the UN -- key guiding members, has ENORMOUS POWER; even though the US has done a lot to undermine the U.N, he has a lot of power and it's better to have the US IN the UN rather than out : it's, in a way, a threat. -CRITICISM:
"John Birch Society" & the "Get US out of the UN" campaign. (1959) ^ Anti-communist society. !
The UN is at the hub of a global network working to submerge the independence of all nations in a world government controlled by the elites
• -- example of how global governance is NOT considered a popular idea at all (JBS formed after a pilot gunned down in the Korean war.) WHAT'S more effective -- global governance that's "looser" like A Slaughter & a system of individual agreements made between states? de Gaulle: "UN imprecise in role and function." A fabrication; a fiction. Impossible to see what it is -DECLARATORY RIGHTS, vague, not specific enough to actually enact any kind of proper policy.
de Gaulle "Only way you can have effective rights is through treaties." (Bentham & Slaughter would agree w. this.) "Complex internationalism" -- we MAY need international organisation, but should also have strong interstate relationships, a la Westphalian? -- UN NOT A WORLD GOVERNMENT:
States remain sovereign -- Article 2 makes it clear; Westphalian state sovereignty DOES STILL EXIST. DOES NOT MAKE LAWS PER SE; quite often it's declaratory. Other arms -- e.g, the UNSC is able to make laws -- can establish international criminal court, e.g ICTR & International Criminal Court in former Yugoslavia. UNSC not a law making body, but it has law making effects. As part of it's security measure, laws may "well be made."
UN says laws are binding; CAN'T create binding obligations -- able to declare them, but doesn't have the power to uphold them save in strict circumstances, "Equality" -- doesn't matter about size, population, differing political views, e.t.c; all member states have a voice & a vote, although there are dynamics to this. e.g; Nairu may not have equality. HOWEVER still has member states willing to "play along" -- e.g, US doesn't "pay it's due" -- it's like being in a "club" -- you have to come to the table, e.t.c, and the U.S doesn't really want to pay; still owes the UN upwards to a billion dollars, probably in relation to warfare, taxes, e.t.c. -- UN : series of organisations within an organisation. Various roles -- PRIMARY one is human rights. SECOND: has goals and objects, but they're quite declaratory. Guiding principle is in the UN Charter. E.G; will determine WHEN the UNSC intervenes but also states the legal categories & status of states -- THE WESTPHALIAN IDEA. Those who sign the charter have binding obligations, although the UN can't quite hold them to this. !
“Article 1(3): To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion;…
Robertson: charter makes human rights a matter of global concerns but does not impose any legal duty. E.G; Millenium goals & poverty reduction goals -- member states are not NECESSITATED to attempt to see this occur. HOWEVER the UN did limit the obligations to a "certain set of functions" in the UN in relation to the UNSC -- "only allowed to intervene in case of violations that are a danger to international peace & security." Guiding legal document is the Charter -- but nonetheless, binding declarations are necessary for each member state. BUT the obligations are limited to a certain set of functions in relation to the UNSC: makes human rights a "matter of global concern" .. but "does not impose any legal duty on member states to comply". What happens when an offending member state doesn't meet this? what're the sanctions? !
“All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (Art 2(4)) THIS & SOVEREIGNITY THE BIGGEST THINGS IN THE UN CHARTER. Force should ONLY be authorised: the only ones who can authorise it are the members of the UN Security Council is otherwise . GENOCIDE is not necessarily a breach of international peace and security and therefore may not actually be properly examined or taken care of -- therefore, what DO we call international aid? EG Rwanda: "was" an international threat but no intervention occurred. UN'S measures are v varied as per Chapter 7 -- can be creating tribunals, freezing assets, travel bans, e.t.c. ONCE the UNSC has determined there's an international threat, they may take ANY MEASURES NECESSARY. When there's the will to intervene in the UNSC, it can be VERY strong. UNITED NATIONS OUTLINE:
-- General Assembly in NY. 123 members. (matters that concern world nations.) NO BINDING POWERS. -- Security Council/NY -- resolution is BINDING. HAS THE POWER TO ALTER THE LIABILITIES OF OTHER POWERS. -- EcoSoc COUNCIl -- e.g, matters of poverty reduction, but NO BINDING THANGS. tRUSTEESHIP cOUNCIL/NY -- "former colonies still regarded trustee territories." Secretariat /NY. (some say it's weak) International Court of Justice (ICJ) Netherlands. "Top legal body determines what rules are and how they operate." When one state takes a claim of a dispute with another claim to he state thte ICJ, who determines what's to be done. BINDING. -- Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned. Article 94 of the United Nations Charter lays down that "each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party".
SECURITY COUNCIL:
FIVE PERMANENT POWERS: US, CHINA, RUSSIA, UK & FRANCE. "PERMANENT". Some believe it's not a proper representation of power -- India, par examplee, wants to muscle in. (veto: only one of them can veto in to prevent a resolution being passed.) China & Russia have vetoed action on Assad's regime before. ONE veto and everything is undone. ten NON PERMANENT MEMBERS WITH 2 YEAR TERMS. NO VETO POWER. ROTATES.
"Wider representation initially included 6 rotating members w voting rights though no veto power." Founding members & have veto power.
--Veto bad when it comes to state rights: state will put their rights first & states will see their relationships w other states as permanent; e.g, China will never / rarely authorise the use of intervention in a country that's occupied bc THEY use force to occupy other countries. A kind of politicisation. STATE RIGHTS vs HUMAN RIGHTS present here.
BUT if you don't have the veto power, states will be creating "mischief outside". If you don't have veto power in the UNSC is that they'll create "trouble" outside the UN (Bosco, "Far better to have someone in your tent pissing it out, or someone outside your tent pissin in" or basicallyy, you want the questionable guys on your side. UNITED NATIONS SECURITY COUNCIL PROPERLY:
International law & rights; John Austin positive legal theorist "Since there is no hierarchy of noticeable power in the legal system -- no policeman -- technically speaking, there is no international law (as it can't be upheld!) Belives in a command theory -- law does not exist unless sit can be enforced. So does international law actually exist? The SECURITY COUNCIL is a kind of policeman, so it remedies Austin's concerns; it's edicts are enforceable. Some states DO exist the enforcement of laws. "Custom" & "customary approaches". Even the Westphalian system -- a situation with law. !
Through its own resolutions and through its created bodies – the International Criminal Tribunals, it has contributed to international law – recognition and non-recognition, the law of treaties, state responsibility, -and international administration of territory.
• Resoltuions of the security council & the general assembly constitute legal-making features (Higgins, 1963.) Security Council may create international law through it's mechanisms -- e.g, created through treaty when all the countries come together and make an agreement about the immunity of diplomats (e.g, the Vienna Convention) then it's accepted by ALL states that diplomats have immunity as they perform their tasks. E.G; had the Britishg one in to get Assange from Ecuadorian embassy, would have been a violation, and then the Ecuadorians could have done the same to the British -- THIS IS WHY STATES ACKNOWLEDGE THEIR ENTITLEMENTS FROM ONE ANOTHER. "Mutual deterrence". Through state behaviour (e.g; custom). Through legal decision (ICJ, ICC.) International law can be directly altered by the actions of the Security Council. -Australia attempted to win a seat: "Horta said "Australia's civil rights record & engagement demanded that it should be recognised by the UNSC" and by having an Australian presence would be good for Asiapacific region.
Gillard: "Could bring a perspective that others couldn't --. e.g. Luxemborg." (2012) BUT having a membership in the UNSC not enough; doesn't have a veto power; tend to follow countries like UK & USA. So there's no point in it!?!?!
-- "Non-council member states." Can participate, but have no veto rights & no voting rights. SC -- inner layer of membership, rotating memberships, and then non-council members. -- UN/ SC & REFORM What would make SC more representative & fairer? 2004 Panyarachun Report suggested expanding the SC (the PP?) to 24 members. More representation means there are wider voices; a more equitable way of considering matters. Resoltuion difficult to pass though: 24 members might make it more difficult. 2005 G4 (India, Brazil, Japan & Germany) -- get another permanent seat not necessarily with a veto power, and four new non-permanent seats. One for a great power w/o veto power.
REFORM REQUIRES 2/4 SUPPORT FROM MEMBERS WHO VOTE ON THIS RESOLUTION. GENERAL ASSEMBLY: NY Deliberative organ, passes resolution. NO legally BINDING POWER. UDHR (1948) came from their deliberations. Admits new members/member states. Each me,bees has one state. Deals w matters of budgets for peace keeping arrangements. Deliberates over "key matters" -- e.g, declaration over slavery Not necessarily binding, but ICC would regard any declaration from the General Assembly representative of the general nations of the earth, as international law. GENERALLY SPEAKING, IS DECLARATORY. Makes recommendations, requires 2/3s majority votes. e.g Arms Trade Treaty -- passed by resolution, now needs to be ratified. Question is whether it's to be effective is demonstrative of international law/human rights porlbem; arms trade tries to regulate illicit trafficking of arms Tries to make it cleaner, not stamp it out -- "can't sell to criminal gangs, terrorists, e.t.c" (how would even ENFORCE this?) open for signature from 3 june 2013. NEEDS ratification; needs to see who upholds it. Indians won't sign it -- net importers. (Around 114 signatories so far.) Russians export it; net exporters. SECRETARY GENERAL: Effectiveness varies. "Too effective" general means the S-G is "curbed" of it's powers.
eg Kofi Annan 1997-2006; advocated rule of law -- influence and authority of law within society,
1. The government and its officials and agents as well as individuals and private entities are accountable under the law. 2. The laws are clear, publicized, stable and just, are applied evenly, and protect fundamental rights, including the security of persons and property. 3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient. 4. Justice is delivered timely by competent, ethical, and independent
representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. , Millennium Development Goals, encouraged international cooperation. LOOK UP THE INTERNATIONAL CRIMINAL COURT.
POWERPOINT FIVE * Revision of GENOCIDE, CONVENTIONS, E.T.C Look at TORTURE: Convention Against Torture -- "CAT" -- most important. GENOCIDE: unsure what's in it, and what's not in. Article 2 of UN Genocide Convention; !
“deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious or national group”;
* remains questions as whether there should be CULTURAL and POLITICAL definition. USSR doesn't like this, whatsoever. !
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Article 1, UN Genocide Convention: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” Article 1 of the Convention establishes the crime of genocide in times of war or peace .
HAS TO BE THE MENTAL STATE TO WANT TO DESTROY SOMETHING; HAS TO BE CALCULATED. After you've cited a law, be sure to apply it: e.g, Article 1-- talk about how the intent has to be the ONLY REASON for this harm: has to be BEYOND REASONABLE DOUBT.CAN be a war crime/crime against humanity but only genocide if there's an intent to harm.
No reason why it has to be ALL of a race or A CERTAIN NUMBER. SPECIFIC ACT must identify individual in term of characteristics; NOT NEGATIVE. Definition is imperfect; there can be cultural genocide & political genocide -- items we need to consider.
Under Article 2 of Genocide Convention, the most important thing is the intention; also the most difficult thing to provide. --HYPOTHETICAL XANADU: ETHNIC VIOLENCE THAT ARISES FROM CLASHING RACES. LOOTINGS, KILLINGS BREAK OUT.
Felix Francis is president of Xanadu, a distant Pacific Island, once a British colony. He has ruled for 24 years, but the local populace is getting testy. It is historically divided between various Melanesian groups. However, over the years, an increased number of Chinese businesses have sprung up, courtesy of economic changes made by Francis. Francis fears he might be making mistake. Riots start to take place. There are a spate of killings and lootings. The Chinese population figure prominently in these. A few of Francis’ commanders are involved. The official radio station is also releasing threatening broadcasts. Chinese Xanadu community leaders are wondering what might be done. Are there any options open to them? !
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Genocide: what were the acts here? Art 2, UNGC should be consulted Is there a co-ordinated/systematic effort to carry out the acts? Is there need for a war? No. Is President Francis responsible? (proving mental state for killing a problem. Not a problem for the commanders, perhaps. But there must
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be an identification of the characteristics of the Chinese in this that warrants it as “genocidal” There might be command responsibility
Under Article 2 of Genocide Convention, the most important thing is the intention; also the most difficult thing to provide. Crimes that might constitute a basis for intervention: if there is violent unrest in the country & it constitutes sufficent threat to international security, UNSC might step in. Occasionally regional arms, e,t.c., different teams that can step in; e.g, the ICTR. ICC could also step in. UNREST + ELEMENTS INVOLVED: MENTAL STATE, SEE IF THEY'RE "SATISFIED" . NEEDS TO OBEY ARTICLE 2 OF THE UN GENOCIDE CONVENTION. (MENTAL STATE FOR KILLING REMAINS UNCLEAR.)
*CIVIL UNREST CAN ALSO BE GENOCIDE; WHAT DOESN'T MAKE IT GENOCIDE IS THAT YOU CAN'T TELL WHAT THE INTENT IS -- IT ISN'T CLEAR, OR AT LEAST THE INTENT IS HARD TO INFER. E.G; THE DEATHS MIGHT JUST BE "ACCIDENTAL" -- THEY'RE KILLING PEOPLE TO GET FREE FOOD, BUT THEY DON'T MEAN TO KILL THEM BECAUSE THEY'RE CHINESE. THEY MIGHT IN FACT BE DESCRIBED IN A "NON-" CATEGORY; "NON-POOR".
NEEDS TO BE THE ONLY THING THAT HAS ARISEN HERE. ALWAYS NEED TO USE ARTICLE 2, UNGC. Xanadu: also a problem of identifying factors so therefore you're unsure IF it's genocide -- are they being killed because they're chinese, or because they're too rich? LOOK AT what acts are relevant to genocide, what do the events constitute, is there a systematic effort, can you prove the mental intent was it planned, was it set -- e.g, in Rwanda; part of a "strategy", timed. EASIER TO PROVE IF YOU CAN SEE IT AROSE OUT OF A SYSTEMATIC EFFORT. HARD TO PROVE WHEN ELEMENTS OF THE STATE HAVE BROKEN OFF, PEOPLE HAVE GONE RAGUE. Is President Francis responsible? "Command responsibility." Might be said he's responsible, if his intent is fitting.
--Genocide: can be expansive at times.
Question when there are spates of ethnic violence when there's communal strife: difficult to prove a systematic nature or a mental state associated with it. "Economicide" probably does exist, e.t.c, but it
doesn't fall into under article 2. ARTICLE 2 is the norm we use to define genocide by, but it IS v imperfect. DOESN'T mean that there are other crimes against international law/humanity, but it doesn't mean it's genocide. Rampages, pillages, looting; Genocide Convention lists causing serious bodily or mentally harm as potentially genocidal, yes. Applying Akayesu; he was held responsible here. -XANADU -!
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Concept of the ‘plural society’ – in which various social or ethnic groups are competing for resources of power & money, which makes them by their very nature rife with inequalities (in the political, economic, cultural and social spheres). Discrimination is often rife (not only in individual prejudices) in institutional processes such as education and employment – these structural conditions are likely to be conducive to genocidal conflict - Germany prior to WW2. Applicable in this case: Chinese immigrants “competing” for resources
Are there ways of stopping it? international remedies? International remedies -- the UN & THE UNSC.
Might be regional organisations, but they don't have anything on the lines of the ICTR. (EG; Australian Pacific Economic Council.) EXAM: need to determine if an act satisfies the necessary elements of genocide (THE THREE ASPECTS, AS PER UNSC ART 2.) RAPE CONSIDERED GENOCIDAL BECAUSE IT PREVENTS THEM FROM HAVING FUTURE CHILDREN, ALSO BECOMES OUTSIDERS. *PEOPLE CAN CREATE THE MINDSET TO HATE OTHERS IN VARIOUS WAYS; IT DEPENDS ON THE "CIRCUMSTANCES OF THE CASE". --
Look at different types of genocide; Binoy will be 'pleased' if you mention other genocides that can satisfy these definitions -- e.g there might be an unequal disitrbituion of power, money, e.t.c, and violence often occurs here. --> PLURAL SOCIETY. -IMPORTANT TO REALISE GENOCIDE MAY BE PART OF THE LAW OF A COUNTRY OR MAY BE PART OF THE INTERNATIONAL LAW OF A COUNTRY THAT NEEDS TO BE RECOGNISED; E.G IT MAY NOT BE NATIONALLY RECOGNISED.
-- eg Australia, genocide law needs to be ratified. (Nulyarimma v. Thompson). (didn't win because it wasn't part of Australian common law.) No statute to consult: no genocide. DIVISON between the case: minority judgment said that genocide forms t he common laws -- a "jus cojens" law; cannot be ignored, immutable. That was the "dissent". Decision of Whitlam & Wilcox JJ won out. Genocide therefore NOT crime. Dissent: Merkel J -- considered a "higher law.", jus cogens. Dissenting judge; Whitlam & Wilcox; "no intent to commit genocide." -- INTERVENTION, E.T.C. E.G The UN; tension. ARTICLE 2 respects sovereignty and outlaws the use of actual or threatened force. QUALIFIED by chapter seven, though: chapter seven dictates when the UN/UNSC will intervene -- when there is threat to international security. (provided there is no veto.) !
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“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”: Art. 39, UN Charter (Chapter VII)
E.G The UN; tension. ARTICLE 2 respects sovereignty and outlaws the use of actual or threatened force. QUALIFIED by chapter seven, though: chapter seven dictates when the UN/UNSC will intervene -- when there is threat to international security. (provided there is no veto.) WIDE scope of intervention. MAY CREATE INTERNATIONAL TRIBUNALS. ALSO HAS INTERNATIONAL CRIMINAL COURT: International Criminal Court (commonly
referred to as the ICC or ICCt)[2] is a permanent tribunalto prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression(although jurisdiction for the crime of aggression [3] will not be awakened until 2017 at the earliest). [4][5] The ICC was created by the Rome Statute which came into force on 1 July 2002. [6][7] The Court has established itself in The Hague, Netherlands, but its proceedings may take place anywhere.[8] It is intended to complement existing national judicial systems, and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. Currently, 122 states [9] are states parties to the Statute of the Court, including all of South America, nearly all of Europe, most of Oceania and roughly half the countries in Africa. [10] A further 31 countries, [9] including Russia, have signed but not ratified the Rome Statute.
The ICC has been accused by many, including the African Union, for primarily targeting people from Africa; to date, all the ICC's cases have been from African countries. [18][19][20] [21][22] Four out of eight current investigations originate, however, from the referrals of the
situations to the Court by the concerned states parties themselves. [23] -- TORTURE: "Difficult & complex" because of issues like the dir ty bomb scenario. WHAT should a person do? Getting a "torture warrant" to legalise this is difficult; just takes too much time! Some "torture universally condemned & criminal". Others: "it is inevitable. However resistant we might be … we'd still use torture if the circumstances warranted it's use." Argenitinian in the 1920s; would normalise the routine of t orture; torture the sympathisers/droppers e.t.c -- torture them during the day and mentally toruend, and then they'd be tr eated well and taken out to dinner: given suits. "Normalised". Also, just fucked. Hard to get a handle on. I wonder how that feels? (Perhaps Imogen does this? Take the torture away and people will beg to see it.) "Age old instrument of state". Been condemned -- way back from the fifteenth century, "use of torture places us on the road to hell." Demeaning yourself, not just the individual. "Reciprocal arrangement". Specific acts -- might be psychological, might not be. "Merely the legal designation of an event or behaviour, based on the comprehensive assessment of this event or behaviour." Used to be called "enhanced interrogation." Conflicting definitions of torture: He prefers the 1948 convention against torture. Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Geneva -- issue with this definition is that it doesn't define what a prisoner of war is ; what constitutes this? if you're not deemed a prisoner of war, then you can be put in Guantanamo Bay -- think of Abu Ghraib. "Redefinable." Further Definitions:
Article 7 -!
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation (Art 7, ICCPR)
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“The Covenant does not contain any definition of the concepts covered by article 7 nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different types of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied”: Committee on Civil
and Political Rights, General Comment No. 20 on article 7 of the International Covenant on Civil and Political Rights, para 4 • NATURE, PURPOSE & SEVERITY are how they'll determine WHAT torture is. Committee is reluctant to determine what torture'll be, because it doesn't want to restrict behaviour that might be constituted as torture on one hand; might incorporate a range of behaviours, nonetheless. ARTICLE 5 OF THE CAT: RIGHT TO HUMANE TREATMENT:
Similar to the International Covenant of Civil & Political Rights; fits in to these rights. CAT -- UN Document. (1984). Geneva Convention -- limited because of POW declaration.Also ARTICLE 5 has limitations. Others have their weaknesses.
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No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person (Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, 1984)
ISSUE WITH THE C.A.T; doesn't render/return someone to a state where there are substantial grounds for believing the person would be subjected to torture.
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Art 3 bans returning, extraditing or refouling a person to a state where are substantial grounds for believing that he would be in danger of being subjected to torture. (applicable on a regular, daily basis.)
-- e.g, think Julian Assange to some level. FOR EXAMPLE: fugitive in Australia then extradited to the U.S. IF THEY'RE GOING TO FACE THE DEATH PENALTY, THAT FEELS WRONG. IT WOULD CAUSE CRUEL & INHUMAN TREATMENT. RECIPROCAL: HAVE TO BE PUBLISHED FOR YOUR CRIMES HERE IN A SIMILAR/THE MOST ACCEPTABLE WAY AS YOU WOULD THERE.
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Rome Statute, International Criminal Court, 1998 on torture (actually set out by the ICC)
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Article 7: the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. ACTUALLY LAYS OUT WHAT TORTURE IS HERE -"intentional inflict"
• • "Most interesting definition." Provides an outline of what might constitute torture. Here, torture is defined as "intentional infliction of severe pain." INTENTIONAL -- like genocide; you need to show the mental element present in torturing someone whose in their custody or under their control. - Nature of the act, intention of the perpetuator, purpose; quite often, the involvement of public officials/designated agents. WHAT QUALIFIES? -- US Secretary Rumsfeld didn't think "enhanced interrogation" wash't torture; hit the body, but?
"War on Terror" -- water boarding, simulated drowning, caused conflict & debate on whether it's interrogation or not. Bush accepted this.Is a public official involved? Who's doing it -- what's it FOR -what's the "purpose"? Acts are never straightforward; who's doing them? Quite often, torture's outsourced. Now gone to security groups, e.t.c, privatised groups -- or get your allies to do it for you. EG the Jordanian secret police can torture your suspects for you! (Make this a slogan, printed in happy bubble text on dark black shirts.) Can be a witness to this. Australian officials been present to torture situations. (Wuite a dark thing; people always want to see the murders, want to watch how people die, and withholding the images of torture -- like Bryan Singer does -- only emphasis your innate warped nature. Think of Utopia.) "Silent participant." // Church did this too! -- priest does not ever "sully his name" -- TORTURE CAN ALSO INCLUDE OMISSION: -- CAN DEPRIVE A PERSON OF LIFE/FOOD (echoes genocide.) E.G; Denmark against Greece in front of the EU Court of Human Rights; individual kept in prison, deprived of facilities & amenities, may constitute torturous conduct. DID involve the deprivation of food -- both physical & mental. -- Negligence an issue: can't negligently torture someone. RECKLESSNESS might suffice as that comes closer to intentionally inflicting pain & suffering. <-- may at first seem like a high level pressure that's applied which is accepted as an "interrogation technique", but when it accelerates and becomes harmful, THEN it can be considered torture. --
Key purposes in torture: !
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extracting a confession ; or obtaining for the victim or a third person information ; or for reasons of punishment ; or For purposes of intimidation and coercion ; or for reasons of discrimination
THE INDIVIDUAL/who's committing the act is a tricky matter. "Other person acting in an official capacity" -- expression used in the context of law on torture. Committee Against Torture recognises this as de facto authorities; don't have to be a formally constituted government, but you may resemble it. NOT official gov't organs. (EG: think the Taliban who are NOT the government but they certainly act like it.) or Irish Revolutionary A??? would engage in military acts although they weren't TECHNICALLY anything -- they DID use acts of brutality. PUBLIC OFFICIALS: YOU DON'T HAVE TO BE ONE IN A FORMAL GOVERNMENT ROLE TO PRACTICE THIS.
E.G The Civil & Political RightS cOMMITTEE on Elmi, which considered Somalia's political authorities in the 90s. NATURE of political authority in Mongadishu/whole state was shattered and frayed; difficult to determine who was in control. Committee said -!
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“Accordingly, the members of those factions can fall, for the purposes of the application of the Convention, within the phrase "public officials or other persons acting in an official capacity" contained in article 1.”
• IE; didn't formally have to be a part of the government, e.t.c. CONSENT & ACQUIESCENCE -- states may be "surprised" at the acts of torture they're responsible.
eg. states in the EUROPEAN COURT OF HUMAN RIGHTS have obligations to investigate human rights as per the Charter, and therefore must also refrain from torture & also intervene/participate to prevent torture occurring. INTERVENTION & refrainig. !
For example, the European Court held that a State was in breach of its obligations under article 3 of the ECHR because it did not have taken sufficient measures to prevent some acts of torture/cruel, inhumane and degrading treatment administered by non-state actor (corporal punishment inflicted by the step-father or corporal punishments on children when the social worker(s) knew or should have known about them. (2001, UK.)
THIS is quite far reaching! ARGUMENTS FOR/AGAINST TORTURE: Deontology - adopt a moralistic perspective that torture in itself is evil v.s utilitarian e.g. Kant "people cannot be treated as means to an end, but ends themselves." I.E; even if you war to say torture might yield information, that oughtn't be justification -- it's "BAD". (Where do you stop? What if someone has to torture someone desperately; what if that breaks them down? What if it entirely breaks her? Think of Harry firing Unforgivable Curses? What if she's desperate; he's struggling out of his chair, and she's still so desperate -- accidentally slashes his throat? But leave it up to the audience to draw their own conclusions? It depends a lot upon the actor to pull this off. They bring the pulse to the action; you just provide them with what they need to flesh out.) Utilitarians (Bentham) -- casualist approach; "if torture can save lives, then it should be." THOSE WHO EMBRACE IT:
*See it as having value; ticking time bomb scenario most greatly accentuated. Often appears in Israeli legal system. What about emergency measures? "Torture gains information quickly". "Torture is irrepressible" -- why don't we just admit it -- wy don't we regulate it? Alan Dershowitz -- OJ Simpson lawyer -- "Torture warrants should be used." GO to a judicial officer & get a warrant to torture someone. (What if this is what happens? What if people carry warrants
around and someone's like "do you have a warrant for that?" and the suit is like "filed the paperwork yesterday?" and she's like "Cool. Let me prep a chair." with such quirky dispassion the theatre laughs, and then she throws one at him and RUNS -- because who would sit down and simply let it happen? A world like this'd be super interesting. ) !
Or they keep it secret – eg. After the Landau Report (1987) in Israel
Mirko Bargaric & Julie Clarke: "torture permissible and moral". And could be justified. One technique to justify torture is to change the categories -- e.g. terrorists & Al Qaeda don't fall into it; if they don't respect international law, why should we? Terrrorist groups undermine the legal system w law -- e.g "law fare". Undermine our rights, we had to respect theirs. !
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Terrorist groups do not respect the Geneva Convention and are not signatories to it; Sees morality as a contract and some people (terrorists) as not accepting the contract;
NEGATIVE SLIPPERY SLOPE -- if you start using it extensively, you will use it all the time. No such thing as "selective use of torture". Becomes an established herd mentality.
e.g; four Quantanamo files showed that officials were given specific orders in how they would torture inmates -- came straight from the Pentagon itself. Not someone trying to play hero; these were issued from the TOP. Moment you start condoning it, it becomes systematic. BUT it's ineffective -- people under torture don't tell you the truth, tell you what you want to hear. "When you are living under circumstances of torture; it's not that you confess to anything, it's that you confess to everything. You confess in the hopes that the pain will stop. " -- Dignity. Undermining of the worthiness, but you too. Consistency -- torture by one justifies torture by the other (moral high ground) -- you could go to Egypt and the other could torture you too. Ethical: deontological, consider Kant. Reciprocity -- comes back to consistency one more; don't torture means you won't be tortured. Obama tried to use this; didn't really work, NGL. Types of torture:
-- Thomas Aodorno, critical: people who torture respect submission; "authoritarian personality". Respect for submission to aggression & a belief in aggression. Despot & police chiefs. BLIND
ALLEGIANCE TO CONVENTIONAL BELIEFS & RIGHT & WRONGS. Milgram & obedience: are people so obedient they will succumb to a torture regime easily, provided the environment's there?
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Milgram’s experiments on obedience to authority demonstrated that people would inflict pain on others in violation of their own moral sentiments if ordered to do so by someone they saw as a legitimate authority (Milgram 1963, 1965, 1974) -- people here made into "accomplices of torture" . Torturers aren't savages. ANYONE can become them. Irrespective of our circumstances, we WILL engage in acts of dehumanisation.
• • LAW ITSELF IS A VERY BLUNT INTSTRUMENT IN UNDERSTANDING HUMAN BEHAVIOUR; PUNISHING SOMEONE W/O UNDERESTANDING OF THEIR EXTERNAL ENVIRONMENT IS PROBLEMATIC.
• STANFORD PRISON EXPERIMENT -- people got SUPER enthusiastic here. ZIMBARDO FOUND that he could make torturers. Could see this happen in Abu Ghraib, e.t.c; the environment made is what's created them, the "climate". When authority came into play, Zimbardo saw people began "responding accordingly". !
Terrorism does not demand that we torture to defend ourselves. To the
contrary, the threat of terrorism is a reminder of the importance of protecting human dignity.’ (Ben Saul, 2005) INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS;
No definition of the concepts of torture SPECIFICALLY as "once you define something horrid, other horrid things can escape the definition." Committee makes it clear that it' s a case-by-case issue; can't lay down specific guidelines. (if you have men off screen being tortured it can't be flat, nor can it be meant as a means for entertain; if it has impact to it and value, then you have to respect that and represent that and show reaction to that, otherwise it's flat -- it's a gimmick. if it s a gimmick and a joke of your best black humoured calibre, then play that up; respect that. and more importantly, don't let it linger on too long.) Impact on torturer, impact on victim; double edged sword. Torturer could be linked to arms trade treaty; simply regulates a "better way of killing" -- doesn't deal w. it properly.
POWERPOINT SIX Formation of treaties & laws in terms of documentation & significance when it comes to creating laws b/n stats.
"general problem w human rights is that it comes from a vague area." Key sources of international rights. Creates rights & obligations when states enter into treaties with one another. This is the "fundamental nature of human rights treaties" -- have to have the state involved despite it being considered a "problem" -- it's indispensable. THOUGH they are also responsible for violating human rights. Protector + upholder is often also the one who is the violator. Recent new challenges: Manus Island to High Court of Australia -- legality of the Manus Island solution. May well suffer the same fate as ??? determine what's "morally right"? ( http:// www.abc.net.au/news/2013-08-20/barrister-details-high-court-challenge-to-png-asylum-policy/ 4900630) Treaties: "made between states, states are legal entities -- but not all states are incapable of signing treaties. (may be occupied -- simply DO NOT HAVE THE CAPACITY.) e.g; children do not have the lawful capacity to make contracts. Other things: may have it's own autonomous nature, but still under the control of another state.
Can be made by LEGAL ENTITIES & by sovereign states. "Are they even necessary"? - YES; can't "go it alone" in terms of dealing with the international community. "Standard to abide by". !
“Arguably, the need for treaties has increased as the world's
interdependence has intensified. Continuing technological innovation, economic globalisation and the growth of transnationalism has resulted in an enormous increase in the frequency and rapidity of global interaction” !
(Department of Foreign Affairs + Trade)
• • "Are they even necessary"? - YES; can't "go it alone" in terms of dealing with the international community. "Standard to abide by". -- argument; "tighter, more closer knit places have become -- the global village -- greater need for treaties." context of a treaty is important in dealing w. the flow of information across the internet; there's NO global treaty for it, but there are individual agreements about the way technology is handled. e.g; certain states are trying to control the internet w. some sort of convention. (could the UK be thought to impose a treaty w. nakie kate?) (states HELPING one another) States: !
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Needs to have: (a) Permanent population (b) a defined territory © government (d) capacity to enter into relations with other states - RELATES BACK TO SOVEREIGNTY
Can Australia make treaties with the indigenous people? Some argue that a treaty is fundamental to reconciliation between the indigenous & the aborigines -- leads to RECONCILIATION. Kampmark: "Need to look at those elements. UNLESS you regard or accept the indigenous populations as individual countries/states, then a treaty is impossible. HAS no government. DOESN'T have a defined territory. (Technically speaking)
Reason for Waitangi Treaty in NZ -- there was a FORMAL state of war; actual invasion.
Doctrine of tella nurrius has been overturned,the idea of invasion is still highly contested. (people refuse to believe it was "owned" by people beforehand. Are we dealing with independent states meeting one another and signing treaties? Four Elements. Comes from Notevedio Convention on the Rights & Duties of States, 1933. SEE FOUR ELEMENTS ABOVE. "Defined territory" can be an issue in terms of the criteria already set forth; dispute when it comes to Palestine, Israel, e.t.c. This non-state issue used to exist w. Somalia too, said it wasn't a state -- diffused set of warring groups, impossible to tell who was in charge or who to speak to. -Cold War -- countries making agreements w. other countries; capacity came to mind. E.G; in 1945 the Soviet Red Army occupied a whole stretch from the North Sea to the Adriatic -- "an iron curtain", said Churchill. SOVIET controlled all the states from Poland to the borders of Japan.
Could East Germany, Czeh, properly make agreements-- especially w Western powers? They'd be manipulated. If you're under duress/occupation or incorporated into a broader empire, difficult, e.t.c. Used to think this Eastern block wsas a monolith; that they didn't have independent legal capacity to make agreements. e.g; East Germany, occupied, could've signed a treaty w. West Germany - SHOULD be accepted, but it IS under occupation. !
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According to the Badinter Arbitration Committee of the European Union "the State is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty”:Musgrave, 2000.
IF you rare sovereign, you are free; then within the context of that existence, you are powerful, you can do things w/o inhibition.
• Even entering a treaty might be an act of sovereignty. • States: must be some people to establish the existence of a state, but there is no specification of a minimum number of people. e.g; the Vatican is a state, or Nairu. No requirement that all of the people be nationals of the state.
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ISRAEL AN EXAMPLE OF AN ISSUE HERE.
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“… there is … no rule that the land frontiers of a state must be fully delimited and defined” North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, para 46 (maritime law -- dealt w. where the shelf line and where the border would be; at what point does one's boundaries remain under the sea; determining what land belongs to who, who gets to claim whose resources.) State requires a functioning government, working as a political body within the law of the land This not a condition precedent for recognition as an independent state
e.g Assad is technically in ascendancy, but Israel is split -- half under control of one group, half under control of another. IS IT EVEN FUNCTIONING?
LEGAL CAPACITY: NECCESSITY OF INDEPENDENCE.
Can't be a protectorate, can't be a trustee, can't be a state that is UNDER THE POWR OF ANOTHER ENTITY. CRAWFORD ELEMENTS IMPORTANT (2006):
"General legal characteristics."
(1) States have plenary (ABSOLUTE. SUPREME) competence to perform acts in the international sphere- make treaties and so on. (you may do as you like internationally) (2) States are exclusively competent with respect to their internal affairs-“exclusive” means plenary and not subject to control by other States. (they can take care of themselves -- what about civil wars? MANY REFUSE TO ACCEPT CIVIL WARS;
ONCE THEY DO, THEY ACCEPT THAT THE STATE MIGHT DISINTEGRATE.)
3) States are not subject to international process without their consent. E.G; ICC can only govern situations where consent has been given by states to accept their jurisdiction. V. important principle & problem -- some states would not have ratified certain conventions; REFER TO THE REST OF YOUR
NOTES & WEEK 7'S & THEN WATCH WK 8 & WK 9. POWERPOINT SEVEN REVISION:
Refugee Convention: Non-penalisation clause; under international refugee law, irrespective of how they arrive at their destination, they CANNOT be panellised by "virtue" at that. BUT in many countries, the point of arrival is v.signifcant. EG; if you arrive by boat and that's now "illegal", Australia might want to penalise you. MIGHT be a part of a populace platform, e.t.c; think Australia -boat v.s. air. Domestic law of Australia under the Migration Act that the arrival point -- those arriving by boat; "technically arriving in a non-existent place." "Not arriving on Australian tendencies." NOT arriving in the migration zone. REVERSE terra nulls; no-one's here; don't have a legal status for the purposes of migration & migration zone.
APARTHEID & SEGREGATION:
Segregation & apartheid NOT the same thing. Segregation/segregated population: NOT a state of apartheid. Apartheid: (17th c dutch) -- means "separateness" - idea is to separate life in very distinct in terms of interaction; interaction only takes place in very regulated points. e.g; at no point will individuals of separate race share a water fountain, bathroom, e.t.c, have the same votingng rights. Quite a few people like these ideas. "Experiment of social engineering".
"Sophisticated" - systematic theory practiced in South Africa (1848 to 1994). Segregation in the US - JIM CROW LAWS.
After slavery was abolished in the US, after civil war concluded in 1965, period of "reconstruction" -passage of 13th & 14th amendment. Idea of "equal protection" clause -- but been the subject of considerable litigation re affirmative action, separating races. Jim Crow Laws -- reaction to the end of the Civil War. Southern States endeavoured to "retain aspects of the slave state". Couldn't call it slavery anymore -- that was illegal -- but attempted to maintain social/political segregation. (<-- to be examined under general philosophies of exclusion.)
Jim Crow -- "SEPARATE BUT EQUAL". !
Political equality is not the same as racial equality
Apartheid: usually associated with id' ing a race, separating a race & d oing it in an institutional way (like genocide, sans killing.) FEATURES OF THESE "CRIMES OF INTERNATIONAL LAW ON HUMANITY" -- based on the idea of a system and intention. (think genocide too! intentionality is key as is a system. Torture too!) LEGAL QUALIFICATION/UNIT OF A STATE: MONTEVEDIO (1933) -- dON'T FORGET, THE INHABITANTS DON'T ALL HAVE TO BE NATIVES. -- when it comes to "defined territory" -- CAN still be some dispute about borders! -- government needs to be IDENTIFIABLE AND STABLE. state of chaos is diff; think of Israel. -- capacity to enter into relations. (think cold war.) CAPACITY ARISES FROM INDEPENDENCE. MAKES IT FUNDAMENTAL AS A UNIT IN TERMS OF HOW RELATIONS ARE DEALT W. IN INTERNATIONAL LAWS. Un Refugee Convention (1951):
"fundamental document". SUMMARISE: offers a definition of asylum seekers & refugees + has three key principles: 1) non refulment 2) non penalisation 3) non discriminisation "Key refugee principles" when it comes to processing & assessing them & processing settlement claims. State Obligations: Detention is IMPORTANT b/c deemed a "violation of the Refugee Convention to hold individuals for indefinite periods of time." -- UN Committee assessed Australia's compliance w. refugees to be in breach. Think of ASIO: "assessment risks". "Security assessment" for certain refugee applicants -- if they're seen as a security risk then they can be detained indefinitely, which is not in accordance w. current international laws; does not even have to be a formal charge at all.
ASIO already detained 46 people for being linked to "TAMIL TIGERS" (purported terrorists). BUT NEITHER CHARGED, NOR SENT BACK TO SRI LANKA. "Legal limbo". Asylum seeker is a refugee who seeks refugee status. EVERYONE HAS THE RIGHT TO THIS. Don't have to be a qualified refugee; don't need to fit/be categorised as anything else -- your status changes when you're determined as a refugee. WHEN you are labelled as a refugee, then all the rights accrued from that status are given to you. Prior to that, you are merely "seeking refuge". ARTICLE OF REFUGEE CONVENTION DEFINING REFUGEE:
Well founded fear of being persecuted for race, religion, nationality, politics, e.t.c.
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Asylum Seeker: A
person who enters or remains in a country either legally or as visitor or tourist or student or illegally, then claims refugee status under the terms
of the UN Convention Relating to the Status of Refugees (1951) (“Refugee Convention”) !
Refugee: A persons recognised as a refugee under the Refugee Convention.
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Article 1A(2) of the Refugee Convention defines a refugee as: A person who owing to a well founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself to the protection of that country… CONVENTIONS RE: REFUGEE CONVENTION.
Article 16 Para 1: "refugee shall have free access to courts of law of the territorial & contracting states". BUT some individuals have been put into this legal purgatory. EG; if individuals are put in this legal limbo, in this territory that "ins't Australian" -- by definition, then, they can't have access to Aus courts & appeals. Should have free access to legal courts, but MANY courts try to frustrate this. Article 27: "not expected to have valid or legal documentation as a refugee/asylum seeker" -- when they're fleeing, they DON'T Have to have documents. If you DON'T have a valid travel document you shall be ISSUED w one. Article 31: 'non penalisation for legal entry or presence' -- EVEN if you enter illegally you should NOT be panellised for this. IRRESPECTIVE of how you enter -- illegal arrival in Australia is one w/o a legal visa/proper doc -- but if you're a refugee, you SHOULDN'T be penalised. Article 33 : contracting states & obligation not to return individuals who risk persecution. "Nonrefoulment?" "Non-referrment" -- obligation not to return individuals who risk persecution; where life and freedom will be threatened on account of race, e.t.c. "Often cited in regards to death penalty cases" -- think Julian Assange. !
“The Executive Committee … [r]eaffirms the fundamental importance of the principle of nonrefoulement, which prohibits
expulsion and return of refugees, in any manner whatsoever… whether or not they have formally been granted refugee status …” !
ASIO: reversed it's determination in several cases, but under the newly elected government is that the review system will be abolished. I.E; Abbott to accept ASIO's investigation w/o further determination. ASIO: reversed it's determination in several cases, but under the newly elected government is that the review system will be abolished. I.E; Abbott to accept ASIO's investigation w/o further determination.
HUMAN RIGHTS COMMITTEE found that this continued detention, e.t.c, is that these were in violation; those seeking refugee status fall into legal limbo b/c they're considered a threat. A "blackhole". !
'cumulatively inflicting serious psychological harm'' and in breach of the International Covenant on Civil and Political Rights."
• *says there's serious psychological harm & violation the covenant • POINT TO REMEMBER HERE IS THAT THE COMMITTEE ACCEPTS THAT STATES HAVE NATIONAL SECURITY INTERESTS - THAT YOU DO WANT TO ANALYSE A CLAIMANT'S POLITICAL STATUS. WE WILL WANT TO ANALYSE. !
“The state party [government] has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with the state party's need to respond to the security risk that the adult authors [refugees] are said to represent”
NO JUDICIAL REMEDY: UN found 46 cases of illegal detention, 46 cases of no effective judicial remedies for illegal detention & 46 cases of inhuman/degrading treatment. [OUR REVIEW BOARD IS TO BE ABOLISHED, HOWEVER; UNLIKELY THEY WILL RECEIVE ANY SORT OF COMPENSATION.] ARTICLE 2, UN DECLARATION:
AN EXPLANATION EXPLANATION OF NATURAL NATURAL RIGHT RIGHT -- e.g, "w/o "w/o distinction distinction of any kind". STATES HAVE ATTEMPTED ATTEMPTED TO IMPOSE RACIAL/EXCL RACIAL/EXCLUSIVE USIVE THING THINGS S ON THEIR THEIR STATES. STATES. Historical Apartheid: an effort to "control security" -- population control.
Separateness is "vital" -- people CANNOT engage except in certain distinct locations; certain people can't be employed. e.g Afrikaans -- blacks could work in construction, but couldn't be a lawyerr. APARTHEID USED RE: ISRAEL. Informal Informal tribunal created to exercise that -- Russell Tribunal Tribunal in Palestine, too. SEGREGATION OF THE U.S APARTHEID -- HOW FAR CAN IT "REACH"? SEGREGATION OF THE US -- PLESSEY V. FERGUS -- 1896.
Deals w. the way coach cars were segregated. (think Rosa Parks?) Plessey had white and black background; felt entitled to sit w. white. Charged w violating local statue, went all the way to the Supreme Court. !
challenge made to existing laws on segregation for coach cars in the Supreme Court: Held (7 – 1) by the Court that while the Constitution guarantees equality, the ‘Jim Crow’ laws were not about inequality, but separateness, about being ‘separate but equal’;
• • DOESN'T MEAN SOCIAL EQUALITY -- THERE'S EQUALITY BEFORE THE LAW BUT SEPARATENESS TOO. HELD TO BE "PERFECTLY LEGAL". RACE + IDENTITY HERE USED AS A DIVISION.
Plessy -- argued that the "Separate Car Act violated the 13th & 14th Amendments of the Constitution." (Plessy decided to brave this racism, considering that he might not have been saved in a bar.) Plessy found "guilty of not leaving the car." 13th -- abolished slavery + 14th is "equal protection" of laws + "due process".13th -- abolished slavery + 14th is "equal protection" of laws + "due process".
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The Separate Car Act did not conflict with the Thirteenth Amendment, which abolished slavery. That is ‘too clear for argument’. Legal equality between the races is not destroyed on the basis of colour. - Henry Brown
- 13th Amendment argument fair. - 14th Amendment granted you legal equality, but NOT social equality -- didn't mean it'd abolish distinctions based on colour. Can be POLITICALLY and LEGALLY equal, but NOT socially. DISSENT IN JUDGMENT: the "colourblind' thesis -- the law has to be colourblind; race should NOT apply.
Harlan ONLY ONE TO DISSENT-- "there is an equal protection not merely in law but also in terms of social protection ; can't have separate but equal thesis -- violation of the fourteenth amendment. !
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“In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.” “ The thing to accomplish was, under the guise of giving equal
accommodations for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches.” • • • • ^ WHAT THE LOUISANA ACT DID. CONSEQUENCE CONSEQUENCE OF PLESSY V.S FERGUSON FERGUSON -- separate facilities were fine for blacks & whites so long as they were "equal". AFFIRMED separate but equal doctrine. ALSO meant that there were inequalities that rose in terms of standard -e.g black school would have to have the same "funding"/standard as a white school BUT social inequality was still rife, even w this 'separate but equal" distinction !
Separate but equal became the doctrine that covered everything from theatres, to restaurants, public schools, and was only struck down in the case of Brown v Board of Education (1954).
• JIM CROW LAWS: 1865 - 1965. dID not STRIP CITIZENSHIP FRO BLACKS BUT IT MODIFIED THEIR BEHAVIOUR IN SOCIAL AND POLITICAL SPHERES. E.G; THE SEPARATE CAR ACT IN LOUISANA. Considered matters of division in a v. specific way. Blacks punished for transgression. SOUTH AFRICA THE WORST CASE -- GENUINE MODIFICATION OF POLITICAL RIGHTS, STRIPPING AWAY OF REPRESENTATION/POLITICAL RIGHTS -- E,G, COULD NOT LEAVE THEIR HOMELANDS W/O ENORMOUS DIFFICULT W. THE USE OF PASS LAWS.
Whereas in Louisana/Southern States, they could STILL VOTE albeit w. heckling & persecution. Homelands in South Africa -- "Bantustans" -- homelands policy, wherein it looked like a
"separate but equal" doctrine where SA's were given tribal homes; meant to give them their identity and functioning groups in quarters of SA, but became like ghettos. Became privation. Movement applicable in Southern States.
APARTHEID V.S SEGREGATION:
Education in S.A -- if you were of a specific colour, you could not rise beyond a certain level; couldn't be professional. Couldn't be lawyers/engineers. Rigidity of SA apartheid "v distinct". ALSO different set of education materials. Removal of apartheid in SA happened overnight -- revolutionary gov't redrafted the Constitution. "In two years went from becoming an apartheid state to being a post apartheid state." SOME dysfunctionality about it. In the US it was "evolutionary" -- took place in courts, e.t.c. !
Removing Jim Crow laws was evolutionary – Brown v Board of Education for education; Loving v Virginia (ending race-based marriage legislation). The SA response was a total rewrite, a new constitution.
• APARTHEID "BRILLIANT"? IN HOW IT ORDERS PEOPLE? CODIFIED.
Has no parallel in history -"Was a way of keeping races in charge" -- kept a tense accord between the races "through the power of the gun". Went through an incredible array of laws -- 317 laws to ensure racial discrimination could occur.
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Non-whites were excluded from the political sphere in terms of voting or political activity.
• NO political involvement B/C of the fear of "polluting"/ "introducing" impurities of the race, but also BC it's always a constant tussle between which race will dominate the other: didn't want to allow them ANY CHANCE to overrule, to take control, to dominate.
APARTHEID also a rection to external overthrow/British control. Kept separate politically AND socially. SOME limited contact; black waiters, white clientele at bars. Still at least a classist segregation. !
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Passes had to be carried, enacted by the Pass Laws of 1952, requiring non-white South Africans over 16 to carry a pass book known as a dompas. ENTIRE INFORMATION. APARTHEID FROM 1948-1994.
• • Kept separate politically AND socially. SOME limited contact; black waiters, white clientele at bars. Still at least a classist segregation.
DOMPAS HAD: *fingerprints, photos, personal details of employment, permission from the government to be in a particular part of the country, qualifications to work/seek work there, employer's reports on worker performance/behaviour. Like a CV.' Justification for ht ebureaucracy -- allowed them to MONITOR people. Done in a VERY SYSTEMATIC way. DIFFERENT EDUCATION FROM DIFFERENT PERSONS;
Bantu Education Act in 1953 -- e,g; nonwhites given menial tasks. Black sonly educated to a "certain degree" -- not given professional, no doctors, no lawyers, e.t.c. RESTRICTED JOB MARKET TO ENABLE WHITES TO HAVE FIRST SAY IN EVERYTHING. Made part of a constitution. APARTHEID HAS VARIOUS EXPLANATIONS: "Biological" -- people are "predisposed to distrust outsiders." Psychological explanations - "important of environment and learning processes through socialisation." BUT APARTHEID ACCEPTS OTHER RACES, BUT ALSO RANKS IT HIERACHICALLY - says each has it's place. SOCIOLOGICAL EXPLANATIONS -RACIST ATTITUDES ATTAINED SCIENTIFIC CREDIBILITY IN THE 19TH CENTURY THROUGH SOCIAL DARWINISM
e.g; Craniology -- certain races have "smaller brains". Made clear after 2nd world war, this was nonsense. 19th century; superior race v. powerful. "Racial structure".
Might also be "liberal" accounts (progressive). Marxist -- shifting the responsibility for apartheid away from racist ideologies towards capitalist profitability. (i.e; able to put economic strength in the hands of white people.) -LIBERAL CRITIQUE: economy/markets would function better w. minimal state interference. Comes from the 19th century.
-- think about how black labour could be used; apartheid was effective in some ways -- some argued that apartheid was a "distortion of the market"; when you create "specific market of employment" for whites/nonwhites, you create DISTORTIONS. SOME STUDIES have shown that this segregation is surprisingly economically efficient. eg. Southern states / slave state -- can be rather efficient -- previously though the Northern states, the industriousness were more efficient -- this in fact, not valid. "Had the war not taken the course it did", Southern states could have started an "empire". !
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Yes, it is true that black labour and mobility could be affected and made cheaper, but not more productive. A system might be good for capitalists, but not good capitalism.
Racial conflict - one has to consider material conditions within which the conflict takes place - the inherent inequalities in the struggle for scarce resources; (pluralism)
• • eg. Southern states / slave state -- can be rather efficient -- previously though the Northern states, the industriousness were more efficient -- this in fact, not valid. "Had the war not taken the course it did", Southern states could have started an "empire".
Apartheid incorporated, in a very sophisticated way, "races in their places". NOT WHITE PEOPLE TRYING TO RID THEMSELVES OF A RACE: they're too outnumbered for that, either way. Rex -- sociological places -- talks about HOW racial conflict arises:
pluralistic society, uneven resources. Identifiable boundaries between conflicting groups -- black v.s various other blacks. Apartheid "also kept the blacks in check from one another". 'Alllowe control to be maintained to ensure there wouldn't be a break down of the state structure". "Cultural system of presumed difference."
Cassese outlines the development of apartheid through three dimensions; historical, religious & economic.
Asheron -- divides it into politics of nationalism, culture of separation (encourages separ ateness) & economics of differentiation. (whites in certain jobs, blacks in others.) Economic context for apartheid; some say capitalism an ally, some say it wasn't. "An economic system can itself create the inequalities that will provide the attractive circumstances that apartheid can exist under."
-- can't say it's truly "capitalist", as there were so many market distortions; regulated the labour market, regulated the way workers interacted. In apartheid, state is divided against itself in many ways in a purposeful way; division breeds security (think executive, bla, bla?) !
“struggles over the distribution of labour and the central dynamic of apartheid”. -- "fundamental" to the formation of apartheid. tension & struggle in labour; economic factors are key.
• • In apartheid, state is divided against itself in many ways in a purposeful way; division breeds security (think executive, bla, bla?) Neo-Marxist: notion of migrant labour & how it affected the political economy of SA Capitalism.
SA economy also recipient of considerable migrant labour; those from diff parts of Africa. Argument here: enabled a "pool of cheap labour to develop" -- apartheid's sustainability developed here. Certain parts of the economy controlled by certain races for the sake of profitability & control. APARTHEID; NOT SIMPLY A CONSEQUENCE OF AN INTERNAL PROCESS BECAUSE OF THE VULNERABILITY TOWARDS THE BLACKS BY THE CONQUEST OF THE WHITES.
Also a reaction to whites -- the British - British imperialism played big role in the AFricaan identity, remains fundamental "defining point" of that identity. THIS CONFLICT arose Wars fought against the Boers in the 19th C b/c of British interest in mineral deposits resulted in
oppression of Dutch South-African population. I.E; the Boers were oppressing the Dutch South Africans, to ensure their Afriknaer nation would continue. HOWEVER the Boers did feel culturally oppressed; they had to speak English in school, e.t. c, and were forced into poverty. ANTI BRITISH. ALSO REPUBLICAN. CHRISTIAN; GOD IN APARTHEID.
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Apartheid (Afrikaans pronunciation: ["#p$%rt&'it]; from Afrikaans [1] "the state of being
apart") was a system of racial segregation enforced through legislation by the National Party (NP) governments, who were the ruling party from 1948 to 1994, of South Africa, under which the rights of the majority black inhabitants of South Africa were curtailed and Afrikaner minority rule was maintained. Apartheid was developed after World War II by the Afrikaner-dominated National Party and Broederbond organisations and was practised also in South West Africa, which was administered by South Africa under a League of Nations mandate (revoked in 1966 via United Nations Resolution 2145[2]), until it gained independence as Namibia in 1990.[3] •
Racial segregation in South Africa began in colonial times under Dutch[4] and British rule. However, apartheid as an official policy was introduced following the general election of 1948. New legislation classified inhabitants into fourracial groups ("black", "white", "coloured", and "Indian"; with Indian and Coloured further divided into several sub-classifications),[5] and residential areas were segregated, sometimes by means of forced removals. Non-white political representation was completely abolished in 1970, and starting in that year black people were deprived of theircitizenship, legally becoming citizens of one of ten tribally based self-governing homelands called bantustans , four of which became nominally independent states. The government segregated education, medical care, beaches, and other public services, and provided black people with services inferior to those of white people. [6]
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Afrikaners -- white people still
Anti-capitalist; capitalism corrodes social ties; official progenitors of apartheid thought capitalism was an "enemy", as capitalism was too obsessed with commodities & accumulation. "Godless", ignored higher callings than profit. Communism too: Communism was "godless". Apartheid crucial in race relations: not "merely" a reaction to control on whites, but also AGAINST whites & the British identity & opponents of the Afrikaner program. Also anti-Fascist; fascism unChristian. Communism dislked b/c atheistic -- 1950 Suppression of Communism act was an NP reaction )National Party). ANTI COMMUNIST WHITE POWERS SUPPORTED THEM. South Africa remained under embargo for just over 3 decades, but its ill received arms shipment. !
It was anti-British and anti-black – imperialism was a problem because it racially mixed individuals in the name of
economy, creating a mess of ethnicities (mengelmoes). • • •
Some would argue that the reaction of apartheid is "perfectly undrstable' bc wherever there's been imperial policy of riace mixing, been subsequent problem w. race relations. e.g; Fiji, Malaya, the Carribean. "Complex social arrangements that result in variations on race laws. Each of these states DO have various functioning racial laws; racial separation & favouritism is standard fare. EVEN in Australia.
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Capitalist urbanisation impoverished may Afrikaners. It was a resentment against Anglo liberal capitalism, called ‘English money power’ (Englese geldmag). A pro-Afrikaner capital movement was born to combat this in the name of salvation. English taking control of SA -- took quite a bit of money -- therefore, it was almost a resentment and a vindictive payback.
• • • • • THE EXTENT OF APARTHEID: - been applied to Israel's treatment of Palestinians; seen in protest marchers. eg. Israeli Apartheid Weeks - ethnicities are privileged in the State of Israel. - Palestinians in the West Bank deprived of citizenships. - People are oppressed.
ARGUMENT OF APARTHEID MEANS THAT IT'S A CHEAPENING
- discrimination across the board in Israel against Palestinians. Use of administrative detention -- use of a military legal system that controls a population in the name of pre-emptive security; think of the dompas Most important source; Russell Tribuan on Palestine, a NGO (non-gov-org) which was formed specifically to see if Israel had committed these CAH/apartheid. Based in London. No formal legal status. Created "ad-hoc". Examined the "evidence" submited by experts as to whether apartheid did/does exist.
-- Cape Town session in 2011. * Sociocide" -- controling aspects of society. hide members of society off, treat 'em in a distinct way; intention will eventually be to kill 'em off. Labour exploitation -- e.g, SA, distinct labour laws restricting black s-- using Palestinian labour for construction Extrajudicial killings. !
“The Tribunal finds that Israel subjects the Palestinian people to an institutionalised regime of domination amounting to apartheid as defined under international law. This discriminatory regime manifests in varying intensity and forms against different categories of Palestinians depending on their location.” -- Russell Tribunal.
Tribunal identified three features for apartheid: (apartheid; race, social exclusion, subordination) 1) 2 distinct social groups can be id'd 2) inhuman acts against subordinate group -- this doesn't necessarily translate into a regime of apartheid 3) such acts committed systematically (institutionaliseD) Should the definition be extended?
e.g "genocide" still v. narrow. Goldstone says there's been a "theft" committed on the application of apartheid Shimon says that the term's been cheapened -- the ID's been taken away. Also anti-semitic to Israel ? It'd delegitimatise Israel. The two intend to self-segregate. BUT ALSO in many societies there's self-segregation. (if it's imposed by the states, THEN that might be aparhteidic. Elements of discrimination & apartheid = yes.
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Separateness is selected by the communities themselves; There is no intention to maintain it at the behest of the state, to institutionalise it, or “an institutionalised regime of systematic oppression and domination by one racial group” (INTENTION IS THE POINT HERE; DID ________ MEANT TO DO THIS?)
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APARTHEID IS "SINGULAR". like the Holocaust! What abouut Australia & it's boundary straits, e.t.c to keep Aboriginals from going too far? POPULATION control. "
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1998 Rome Statute definition of Apartheid? “Inhumane acts… committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime”
ISRAEL HAS ELEMENTS OF DISCRIMINATORY ASPECTS, BUT NOT BEYOND THAT. West Bank Wall -- "apartheid?" No; constricts movement, protects boundaries, also considered a safety measure.
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Even if there is oppression – and critics do maintain that, it must be intentional separation and Israel here does at least in principle agree to the concept of an existence of a Palestinian state in Gaza and almost all of the West Bank. Does that group (in this case, Arab Israelis) vote? 20 percent of Israel’s population are Arabs and have the vote, have representatives in the Knesset and have representatives on the Supreme Court.
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South Africa -- costly. Maintaining structure for the stability, but towards the 1980s that stability began to unravel, partially because of international embargo, but also the re-emergence of Nelson Mandela. "Festures channeling of virtualis slots of social ethnic groups -- individuals placed in specific rolls". Might be more economically efficient, but will result in market divisions. Apartheid Convention makes it a crime international law. Didn't make it clear what it would be -same problem with the genocide convention.
Drafted in the 3rd Committee of the General Assembly. Some said it was too narrow, others thought it might be too wide to other states that practice racial discrimination. Most delegates saw the Convention as an instrument to be employed only against S.A. Definition was narrowed to save states who generally practiced racial discrimination.
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International Convention on the Suppression and Punishment of the Crime of Apartheid (1973): apartheid is a crime against humanity and that “inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination” are international crimes (art. 1).
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Article 2 defines the crime of apartheid –“which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa” – as covering “inhuman acts committed for the purpose of establishing and maintaining
domination by one racial group of persons over any other racial group of persons and systematically oppressing them”. • • In 1980 there wash attempt to create an international criminal court to try crimes of apartheid; never worked. Many states reluctant to be involved w. apartheid punishment. !
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No such court was established. Left to States to enact legislation to enable them to prosecute apartheid criminals on the basis of a form of universal jurisdiction. The Apartheid Convention allows State parties to prosecute nonnationals for a crime committed in the territory of a non-State party where the accused is physically within the jurisdiction of a State party (arts. 4 and 5).
in South Africa; NOT A SINGLE CONVICTION FOR APARTHEID. Didn't want to punish but reconcile through "Truth Commission" -- but never a conviction. STILL waiting for convictions from South Africa; we have the ad hoc determination of the Israeli context, but don't have a formal reparation for what should happen.
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No one has been was prosecuted for the crime of apartheid regarding SA. Apartheid abandoned in 1990 By 1994 a democratic South Africa adopted a Truth and Reconciliation process involving granting of amnesty. Post-apartheid South Africa has not become a party to the Apartheid Convention In 1977, Additional Protocol I of the Geneva Conventions of 1949 recognized apartheid as a “grave breach” of the Protocol (art. 85, paragraph 4 (c)) without any geographical limitation. In 1998, the Rome Statute of the International Criminal Court included the “crime of apartheid” as a form of crime "
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against humanity (art. 7). Apartheid Convention might be dead as far as the original cause for its creation – apartheid in South Africa – is concerned, but it lives on as a species of the crime against humanity, under both customary international law and the Rome Statute of the International Criminal Court.
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POWERPOINT EIGHT SLAVERY: "attractive economic use". Previously been a very "acceptable form of social order". Slavery previously thought to be economically inefficient -- thought that the Southern states would've been unable to sustain ther r slave economies, which isn't true. NOR is that a slave economy. LEGAL EFFORT TO PUNISH SLAVERY v.s RESISTANCE, ODDLY ENOUGH, MOSTLY BY THOSE POERS WHO CONSIDER IT AN ILLEGAL/IMMORAL ENTERPRISE. REVISION;
Segregation v.s Apartheid (singualar.) US: governed by Jim Crow laws -- "separate but not equal". (Louisana Coach example Plessey v. Ferguson) This case upheld by a 7- 1 majority in the High Ct -- not against amendment 13 or 14. doesn't mean if you're politically equal also fans you're socially/racially equal. Apartheid; distinct form of social ordering; regulation; dompas politically regulated, pre-emptive moderation.
Appropriate to extend apartheid? Used re Israeli treaties -- been a problem
JUSTICE JOHN MARSHALL HARLAN, ONE OF THE FEW WHO DISSENTED; laws need to be colourblind. Laws that highlight distinctions based on colour "highly flawed". IRONICALLY, this'll put affirmative action programs in the "wrong" too. -- people appointed to a position BC of their status; their skin colour. Makes pegging things difficult; rights talk can be examined from either way. Rome Statue -- 1998 -- CRIME AGAINST HUMANITY Apartheid law developed specifically for South Africa -- therefore Apartheid Convention might be "dead", esp. bc it's so specific. e.g Russell Tribunal tries to revive the law of apartheid (2011, Cape Town.) apartheid -- politics of nationalism, culture of separation, economics of differentiation. DISTINCTION. Reaction to a British -- Afrikaners saw them as "mortal enemies", idea fundamentally lying in t hat urbanisation (British conquest) also created an underclass of Boers. IE; structural abuse often arises from history. Russell Tribunal NOT legal; a "people's court". "Instructive body". Idea of system & institutionalised & identifying racial groups and the inhumanity present there important.
Point of apartheid is how extensive it is; V extensive. SLAVERY FEATURES Orlando Patterson: slavery -- "social death". Others challenge this view.
3 universl afeatures; -- master has the right to threaten or punish the slave w. violence. legal powers reside in the master to punish the slave when the slave disobeys. Structure here is the RIGHT the master has OVER the slave (disabling.) v. sophisticated in a legal sense. regulated in considerable sophistication; who was sold, how, grades, e.t.c. "Natal alienation" -- "denied a right of birth". Universl Adeclaration, after all, talks of you being innately born with rights. SLAVERY TAKES AWAY THAT "BIRTH GIVEN RIGHT". Slaves are deprived of honour. It's origins? -- Marx & Engels (1846) -- slavery a byproduct of a kinship structure; based on tribal models, ruling + governance. Old Forms/Ancient World:
* part of war. might be part of bounty. andapodon. * oiketes. household slaves. part of the economy. * doulous. common/chattel slave. Kampmark: this taxonomy has not changed much. aspects have changed, but we have these distinctions of how labour is used. SLAVES DO NOT NECESSARILY NOT HAVE INCOME OR HISTORICALLY DEPRIVED OF IT; slaves of deep south were given/expropriated earnings they got from the use of their land.
"In fact a transaction taking place". -- Forms of slavery: War -- in times of war, civilians may be enslaved. Usually sanctioned by the gov't. (NOT a bounty, but a technical one. ) Children as domestic servants -- not owned, in an unregulated economy where there's a flow of labour; certainly in the international system. FORMS of slavery. Carribean & West Afr ica.
-- versatile, highly complex form. sophisticated but hard to punish & even easier to fall into. in any good economy, there is any good number of slaves working. may NOT be openly considered slavery, but it like is. e.g; a kind of a u pair? how slavery is contextualised is important.
-- Global economic system. ECONOMICS V.S RIGHTS. "Commercially oriented" in it's manner. Became global -- "Age of Discovery" - European powers went to America, e.t.c, to search for the New World, e.t.c. often would bring labour home. Use of labour IN the colonies. Sophisticated process of CONQUEST and creation of elaborate trading routes. One thing neglected in slave discussion is that many other powers were involved in this -- sophisticated agreement spanning several Arab states too. Portugese & Spanish trading w. Arab traders. Idea Idea of ASSETS and ECONOMICS ECONOMICS v. important important in terms of s;lavery. By 1780s, big transatlantic trading org. Traverses Europe & America; becomes a "global slave economy". Use of this is fundamental fundamental to how we discuss identities identities & rights when it comes to slave. INDENTURED LABOURER NOT OFTEN SEEN AS A SLAVE.
But from the 17th century, "indentured labourer" also meant slave. White slaves AND black slaves -- no racial distinction here in 17th century north america. this racial distinction only occurs i the 18th c. not inteesrted in what's less decent raciall. SLAVE IDENTITY OCCURED BEFORE RAIAL IDENTITY; racial identity comes after economy.
Economic factor dominant discourse; e.g, look at the abolition of slavery in America and how it appeared economically speaking. SLAVERY & PUNISHING IT;
League of Nations, 1926, Article 1.1 !
“…the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”: The Slavery Convention 1926, article 1.1 (League of Nations)
RIGHT OF OWNERSHIP IS NOT ALWAYS EASILY DISCERNIBLE -- have to look at the contract. !
“…acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave
with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged..” • • CONTROL OF SOMEONE. OWNERSHIP OVER SOME. TRAFFICKING SOMEONE. Since 19th Century, international movement to deal w. slavery. Abolitious was still contradictory; some thought trade should be abolished/international trade should be abolished, but owning them not an issue. IRONICALLY founding fathers, e.g Thomas Jefferson, owns slaves. Same goes for George Washington. (First President!) Slavery was so normalised for them that there was a difference between trading beings on the high seas & having one of their own. WHAT HAPPENS WHEN SLAVERY IS NORMALISED IN A STATE; considered attractive in social ordering & engagement, considering they were an "extension". !
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Between 1815 and 1957 around 300 international agreements were implemented, with varying degrees of success, to suppress slavery. 1792 - Denmark bans import of slaves to its West Indies colonies (law effective from 1803). -- some said they didn't have a big economy to start w. 1807 - Britain passes Abolition of the Slave Trade Act, outlawing British Atlantic slave trade.
UDHR A KEY SHOW OF HOW SLAVERY IS SEEN AS A VIOLATION
-- 'NO ONE SHALL BE HELD IN SLAVERY OR SERVITUDE' (Article 4).
INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS, ARTICLE 8: !
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No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. No one shall be held in servitude. No one shall be required to perform forced or compulsory labour . (Compulsory?)
• • POWER & CONTROL ARE KEY HERE; MAKING SOMEONE DO SOMETHING AGAINST THEIR WILL. UN SUPPELEMNTARY CONVENTION ON THE ABOLITION OF SLAVERY, SLAVE TRADE & INSTITUTIONS INSTITUTIONS SIMILAR TO SLAVERY (1956). -- Debt bondage. Debt ties you/compels you to do some work. "Status in terms of liquidation of debt is not reasonabley limited. Control over person to repay debt." -- Serfdom (only abolished in Russia in late 19 C). Condition or status of a tenant who is by law/ custom/agreement bound to live and labour on land belonging to another person. (E.G; AU PAIR?) "Bound" to the land -- inextricable. CANNOT leave it. HAVE to work there; e.g, on farming land. Social Interactions; "Any institution or practice whereby".
1) Trafficking in women & children is an issue, trafficking of brides -- passing on of indivudalls to forced relationships for a "kinship model" -- for alliances, e.t.c. NOT just a child in labour or an individual connected to land or by debt, but may be marriage. CLAN rights; trying to target a kinship model of existence. !
(c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his
family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person; !
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(d) Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.
-- EXPLOITATION. "Actually worse than ever'. SOME would argue that the old system of slavery was clearer; as it was institutionalised & regulated, at least knew the context of where rights ad obligations lie. In this new global unregulated economy where rights are unclear, their situations are less certain. FURTHERMORE slaves had their own protections in the 17th century, had certain entitlements; these may not exist today.
• 1956 DOC SETS OUT WHERE THESE ARE SITUATED. !
Article 4 the convention: "Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free".
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Article 6: The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts (trafficking), or being
accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence -- DEEP AWARENESS SOME STATES WOULDN'T HAVE SLAVES AND OTHERS WOULDN'T BE ALLOWED IT, BUT THEY'D STILL TRAFFICK PEOPLE -- LIKE THE 20TH CENTURY PEOPLE TRAFFICKING. NOT A CONVENTIONAL COMPLEX; DOESN'T EXIST SOLELY IN DEVELOPING WORLDS. Wherever there are flows of capital or people working in services, there may be people trafficking. Sex trade from Europe is a more familiar variation of people trafficking. Wasn't big in 1956 but HAS become a problem. "Emergence of a global trading system". Rome Statue, 1998 -- enslavement is a CRIME AGAINST HUMANITY. !
“the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children”.
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SIMILARITIES; ALL LINKED TO OWNERSHIP, RIGHT TO CONTROL, AND THE PRODUCTION OF LABOUR. • • • • -- DEEP AWARENESS SOME STATES WOULDN'T HAVE SLAVES AND OTHERS WOULDN'T BE ALLOWED IT, BUT THEY'D STILL TRAFFICK PEOPLE -- LIKE THE 20TH CENTURY PEOPLE TRAFFICKING. NOT A CONVENTIONAL COMPLEX; DOESN'T EXIST SOLELY IN DEVELOPING WORLDS. UN PROTOCOL TO PREVENT SUPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN + CHILDREN (2000)
- forced labour, sex work, servitude, removal of organs, forced labours of services. "Shapechanging term" is what slavery is. Origins of labour is an issue; e,g Nike does have it's roots in child labour, e.t.c, and they don't examine it as an "issue". Perhaps we are providing jobs for the local economy, though. - Economic model linked to controlling individuals in that "inseparable". When you consider every item in the system has to derive from some form of labour somewhere; it is problematic, and it's quite likely, that they come from slave conditions though we may not know of it. Slavery has elements of contradiction & enigma about the way it functions. CONTRADICTION;
Patterson -- "slavery is a social death". Origination of slave:
- 15th Century. Came from the idea of Slavs -- those who live in the Balkans, Russians, Eastern Europe, Central Asia. Terminology based on the idea of those groups who were treated . TRADING at this point varied (was around 1490; Americas had not been discovered.) esclavo, escravo, Sklave, esclave, schiavo -- stem from the Latin for Slav, sclavus. these words Western European word for slave. ANY RACE CAN BE ENSLAVED; NEAR ALL RACES HAVE BEEN, TOO.
-- Notary(financial cog) in 1490 in Sicily would note these individuals as "black Slavs"/ sclavi negri who were part of these traditional systems; this part of a whole range, not just the traditional mode , and this is just one element in a wide extension of slavery. 17TH CENTURY: Corsairs traffic black slaves, but they also trafficked white slaves. WILL be used to fill into the demand as is necessary. European powers attempted to stamp them out w/o much success. "Modern pirates".
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Indentured labour as a system of the 1600s. It included both white and blacks. The positions were, in fact, virtually identical. Whites were also captured by the Barbary Corsairs. Slavery is highly versatile as an institution It adapts If an Englishman had been asked what a “slave” was in 1670 or 1710, he would almost certainly have referred to fellow white countrymen who had been seized on the English coast or on ships by Barbary corsairs and transported to Muslim North Africa for heavy labor or sometimes ransom.
SLAVE STATE CAN ALSO HAVE IT'S OWN DYNAMIC OF RIGHTS, OBLIGATIONS, AND EVEN SOCIAL BOUNDARIES.
e.g -- Rome acnowledged slaves were important despite brutality, 2) slaves could also be free. Not necessarily a life of brutality and hardship -- many were social, many earned money on the side. Slaves had their own distinctions; freed slaves might be true social climbers. MANUMISSIONS -- FREEING SLAVES MADE THE ROMAN EMPIRE FUNCTION IN A SPECIFIC WAY. rome was renowned for this.
Disputed why tho shappened; might have been issues of relationships; slave might be released so that use might be married. * Economic self interest -- contrast to the "modern slave system" -- but people in a Roman slave state and to some degree, American model -- were treated as economic assets and valuable. WOULD BE AGAINST YOUR INTEREST TO DESTROY THEM + LOOKING AFTER SLAVES MIGHT BE EXPENSIVE PAST A CERTAIN DATE, HENCE WHY ROMANS FREED THEM. Might have also been affections, e.t.c, but primarily difficult to keep an expensive slave. * Roman slaves wouldd function in economy and society, but also have associated incentives + freedoms; you COULD buy your freedom. It was aspirational. Manumission a useful incentive; ensured a slave's good behaviour -- either obtaining it or buying it.
Orlando Patterson -- "social death"? WHAT slavery are we talking about + how does it function? e.g "social paralysis" -- Ancient Rome was NOT socially paralysed. Limits in social engagements for slaves & freepeople considering the hierarchy, but slaves were NOT limited. SLAVERY IN A ROMAN CONDITION WAS A FINITE CONDITION -- A "PHASE OF TEMPORARY SOCIAL PARALYSIS". So many slaves being freed that this had become an integral part of the Roman slave state -people were expected to free slaves; became OBSESSED w. it. "Corrupted the fibre of the state". Actually started undermining the state; so social ly entrenched was freeing slaves. Dionysus -!
“slave criminals” and “prostitutes” who used their illgotten gains to purchase freedom from their masters. (clearly he doesn't like them, doesn't like the mobility of what they can do.) not an issue of equality; slave isn't equal
ever, but they can attempt to slowly climb back up to a lower rank? level-ish rank? it can be, to a level, reneged? Fall of Roman Empire was occasioned by this. "Diluted Roman stock through the process of manumission." Rome -- slave could be a social climber -- could be "upward & mobile." Slavery is not what it seems; it may fall under categories than what you expect, what about Portguese slavery in Brazil. EACH STATE + SYSTEM HAS IT'S OWN CHARACTERISTICS (OF SLAVERY) THAT MAKES THE ABUSE OF HUMAN DIGNITY HIGHLY COMPLEX. BUT BECAUSE OF OUR INTERNATIONAL FRACTURING THE WAY ABUSE IN ONE CONTEXT MIGHT NOT BE SEEN AS ABUSE IN ANOTHER.
WHY DOES SLAVERY EXIST? - Kampmark: "It has this routes of effectiveness." Slavery & human rights issues v. complex. Like torture -- "states will enslave those, too." SLAVERY MAY BE INERADICTABLE & FAR AHEAD OF ANY LEGAL PRACTICE THAT CLAIMS IT IS LEGAL .(I.E, ALREADY JUSTIFIED??) When kept in a safe system, it may mitigate the harm that arises from the circumstances we usually associate w. it. Kevin Bales -- slavery today is worse; the modern system of slavery is worse precisely b/c it's defined differently & attitudes towards labour have changed. SLAVE DEBATE IN THE 1950S ( legal historical), esp. re it's legacy. 18th centuries -- debates about whether it should be abolished. Vermont abolished it int he 1780s in comp to Southern states, where labour & slavery were considered fundamental & effectively the same thing. "industrious model in the north didn't require slaves, southern model did"?
Irrespective of whether it was urban or rural, slaves were still required; just called something else. highly efficient models of labour DO lead to slavery. In our globalised, capital-free economy; highly efficient models of labour DO lead to slave lives. Human rights don't have to be matters of the innate goodness/interest of individuals. Also demonstrates elements of self-interest; certain individuals would back/not back slavery depending on the divide.People who DIDN'T make money from slaves would claim that it was BAD; also would not have plantations. (so morality & rights, but also STABILITY HERE -- money) What powers would States have and the Fed Gov have in terms of regulating slavery?
Abraham Lincoln went to war w/o any intentions of freeing the slaves of the south @ first. "can't have a house divided against itself". Either ALL slaves or ALL free. -- Abolishing slavery was "ec onomic suicide."
Dreschler -- Lincoln's actions and the slave ema ncipation was an economic impairment.
"Slaves/slave states were not efficient when the Civil War took place in the 1860s" says many. Others say they were doing better than their industrial counterparts up north. The industrial model & the industrialisation were incompatible + contrary to the interests of the slave state as an estate ("didn't fit".) BUT industrialisation & slavery go "very much hand in hand". As industrialisation developed in 19th century abol ition move net seemed irrational; they wanted to "have their cake and eat it too". BUT they denied some of their essential interests when it came to freeing slaves. Counter factual argument; if Southern states had been allowed to pursue slave owning, they would have spread all the way down + started a slave empire all the way up to the 21st C.
DEMONSTRATES WHY THE SLAVERY ARGUMENT IS A COMPLEX ONE: "Time on the Cross -Economics of American Negro Slavery (74)" 10 principal contentions that characterise the slave economy -- demonstrate how the law & economics of slavery is so complex; Defensible? - Was not an "irrational" system for owners, slave or land owners; it was rather, intrinsic in the state that slavery was beneficial; slavery was beneficial to them. Slave owners were NOT being inconsistent w. the interests of the state.
"Slave system was not economically moribund on the eve of the Civil War' -- no they were very efficient. Slave agriculture was not inefficient when compared to free agriculture; free agriculture not "better". 35% more efficient than the Northern system of family farming. (Slave agriculture may just have it's row after all." The typical slave field hand was not lazy, inept and unproductive. On average he was harder working & more efficient than his white counterpart. Basis of that economy was that the blacks were better than the whites; not necessarily as "slaves" but just as agriculture on a whole. Argument that slavery would be incompatible in it's primitive form to an industrial system -- this was far from being so. SLAVES EMPLOYED IN INDUSTRY COMPARED FAVOURABLY W. FREE WORKS IN DILIGENCE AND EFFICIENCY. Problem here w. slavery is compatibility between urbanisation & slavery; discrepenacies/ disturbances may occur here -- using these cheap indentured labours instead of unionised groups. It's how they're utilised. DIGNITY OF HUMAN BEINGS Core feature -- dignity is trammelled when it comes to a violation of human rights. BUT the dignity of slaves weren't as "trammelled" as we believe. The material conditions of the lives of slaves compared favourably with those of free industrial workers. … not to say these conditions were good by modern standards; merely emphasises the hard lot of all workers, free or slave, during the first half of the 19th C. Individuals did fare rather well; they weren't not entitled to keep money -- they could use proceeds of the land to support themselves. Free v.s slave - slaves weren't necessarily worse off. Sometimes, could be better off than the free industrial worker. Within a slave state relative to a free state, also certain benefits associated w. the very people who were me ant to be victims.
Also the notion that slavery destroyed black family -- that they were "damaged because their families were destroyed; behaviour on the plantation an issue." (those seeking reparations.) !
The belief that slave-breeding, sexual
exploitation, and promiscuity destroyed the black family is a myth. The family was the basic unit of social organization under slavery. FAMILY UNIT CONSIDERED INTEGRAL TO THIS SYSTEM; WHOLE FAMILIES WERE PURCHASED, NOT JUST ONE MAN, ONE WOMAN, PURCHASED AS A WHOLE FOR THE PROPRIETARY INTEGRITY OF THE FARM. Land owners & slave owners knew it was in their interest to preserve the societies.
That said, a society too united could be dangerous BUT it was still their interest to keep their slaves happy. Yes; didn't have vote, were property, BUT they were still to be treated as viable units of labour in the society created on a plantation.
-- Expropriation rate; a lot lower.
Individual slaves + slave families WERE PAID in a form; economic system where they are deriving proceeds from the land they worked on. (e.g; Mary Beard on Roman slaves says they had proprietary interest for the household, but that didn't mean their lives were limited. Treated as humans.) !
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Over the course of his lifetime, the typical slave field hand received about 90 percent of the income he produced Far from stagnating, the economy of the antebellum South grew quite rapidly. Between 1840 and 1860, per capita income increased more rapidly in the south than in the rest of the nation (when it was believed to have shrunk)
SLAVERY IS SOMETHING WE'RE CONSTANTLY BATTLING B/C THERE ARE CERTAIN APPEALS FOR IT.
MODERN SLAVERY; *lacks the structure and clarity seen in previous societies. structural issues of rights can vary; those that exist in one context may not exist in another. e.g th e global dispersion of sex workers is diff. Slaves w/n industrialised societies -- American civil war said industrialisation was incompatible with slavery; on the contrary, rapid urbanisation/situations where capital will flow into countries means
the presence of slaves will also be v attractive. !
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research has shown that there are perhaps 3,000 household slaves in the city of Paris alone (also depends on how you define it. au pair ? doesn't mean they have to be shacked in a basement w. rat infested bed; might even be an emotional attachment. it's simply that the individual who hires you controls you.) some 25 million or so ‘bonded labourers’ (primarily in South Asia) -are working to pay off a debt which can never be repaid; (1956 -- one is tied by the debt. you will always be tied by the debt. e.g; providing labour for highly segmented + caste driven societies; traditional societies being uprooted by modern capital -- need to go and work
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somewhere but they simply can't manage how to exist here.) a conservative estimate, there are some 31 million slaves in the world today; Kevin Bales, Disposable People -- (no longer wanted after a certain point) minimal entitlements, minimal rights, threat of control, but once the service performed your value depreciates; you may be let go. could even think of this in regular work? when you're 18 + you don't have the right skills, you may simply be let go.
NO ASSUMPTIONS OF PROTECTION in modern society as it had once been in Roman times, even in Southern states. Protected as an asset. BALES LOOKING AT EXPLOITATION OF MASS MIGRATION OF LABOUR; RESURGENCE/ MOVEMENT OF RURAL LABOUR TO THE CITIES. EMERGENCE OF SHANTY TOWNS, E.T.C, POPULATION EXPLOSION, BORDER ZONES -- SHANTY TOWNS TO RURAL AREAS GLOBALLY. institutions that claim to be against slavery/upholding conventions, BUT they will collude with local economic interests to make money in traffickingg people -!
‘When police sell the right to use violence, they are effectively selling a licence for hunting slaves. In the lean, mean global economy, slaves equal
profits and violence ensures that the profits keep coming. And slavery has never been so lucrative.’ •
CARTELS + self interested groups will also be attached to sell girls too; this is the danger of it, it sprawls so far + so many will be involved out of self interest.
*lacks the structure and clarity seen in previous societies. structural issues of rights can vary; those that exist in one context may not exist in another. e.g th e global dispersion of sex workers is diff. OLD V.S NEW. !
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Old and new slavery forms (as discussed by Bales in Disposable People) Old – legal ownership asserted (is fundamental) – new, it’s avoided (to avoid blame) NO LEGAL OWNERSHIP; no statute or book that says you'r downed, but you're compelled to. Old – high purchase cost – new, low purchase cost (global market for slaves is CHEAP; been an EXPLOSION of cheap labour -- e.g, think migration zone between Mexico and America. "Grey zones have multiplied". once you're used, you'll be discarded.) Old – low profits – new, high profits Shortage of potential slaves – surplus of potential slaves Slaves maintained (Rome; you wanted to buy good, high reputed slaves + you took care of asset) slaves disposable (you just
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wind them down) Ethnic differences important – ethnic differences not relevant (gender? child?)
ONE FORM OF CRUELTY REGULATED (OLD), THE OTHER ISN'T (NEW). MODERN SLAVES ARE CURRENTLY CHEAP + THERE'S A HUGE SLAVE MARKET, TOO. !
‘The average slave in Mississippi in 1850 cost about $60,000 in today's money and profits fluctuated around the 5% mark [slave was an asset]. The slave was an asset to be looked after and bred, an investment that could generate years of labour. This meant long-term relationships and a certain level of care. Today, a slave is not worth keeping longer than is absolutely necessary. With these changes, our ideas about slavery have become outmoded.’
DIFFERENT TERMS FOR MODERN SLAVERY; !
Contract slavery . A person is enticed into a place of work through promise of a contract and proper employment but the reality is that she (or he) is kept as a slave, threatened with
violence, paid nothing, and yet a contract makes this all appear legitimate - the fastest-growing form of modern slavery; -YOU'RE DISCHARGED + DEALT WITH ONCE YOUR CONTRACT IS OVER. LEGAL. old slavery -!
Chattel slavery . As in ‘old’ slavery, a person is born or sold into servitude and the ownership of another (Northern and Western Africa and the Middle East), but represents a relatively small percentage of the total slave population; BUT AS BALES SAYS, OUTMODED/ DATED.
Modern slavery's defining factors; defined by threat of violence, used for the purpose of economic exploitation + when you're no longer useful, you're disposed. Is slavery inevitable? YES. ALWAYS INHERENT; WILL BE TOLERATED IF IT ALLOWS US TO BENEFIT. levels of exploitation vary depending upon which level of slavery are we speaking about?
POWERPOINT NINE Humanitarian intervention: is there a happy medium, a "solution"? Or is there no way to do this? A LOT OF HARM comes from those who want to do a LOT OF GOOD. REVISION;
1) Master has the right to punish/threaten the slave. 2) "Natal alienation" of the slave. "Deied total rights of birth" -- on "paper" v.s in practice is diff. (Consider slave system has it's own particular/peculiar appeal; e.g, Rome, slave systems could be aspirational. Not necessarily wicked, fundamentally bad -- it IS based upon inequality, but it has it's reasons; therefore Patterson's claim slave has no honours needs to be reconsidered. Marx _ Engel (1846) thought it was based on kinship structure; tribal originations; rulers & those who were ruled. Slavery develops out of an economic system; that labour is fundamental, irrespective of old/ new slave system. (highly regulated interests when it comes to old slavery, in comparison to the less regulated variation of the modern slavery.) (Question whether it should be an open society w. legislation + regulations rather than an absolute prohibition.)
* Time on the Cross ('76) -- considered that slavery was more efficient; also, the states there did not suffer a "social death". They THRIVED -- created social ties & bonds there. E.G; those seeking reparations for "damaged families" find that their claims are less valid; slave owners made a point of buying whole families. Time on the Cross suggests economies that can urbanise can also have slaves; doesn't need to just be agricultural. Where there is urban growth, slaves will follow: NOT just a plantation model.
International Criminal Court +Rome Law: outlaws slavery. Crime against humanity. UN Supplementary Convention on the Abolition of Slavery (1956): mentions variations upon slavery; e, g, debt slavery -- can never be repaid. issue w. modern slavery here; they bind people for no written reason until they become valuable assets. Old v.s new slavery: --> Disposable. N. --> Can be anywhere. N. --> "present across boundaries". --> COST means that there can be a "huge pool of surplus labour". --> Slave states used to prize slaves as assets; not anymore. Capitalist interests; new slavery sees an expansion of the unregulated labour market. --> Ethnicity doesn't matter; CORPORATE interest does. (Bales, Disposable People.) -- HUMANITARIAN INTERVENTION Coolidge, 1929 -- "Perhaps one of the most important accomplishments of my administration has been minding my own business." -- AT THIS TIME, US WAS NOT PART OF THE LEAGUE OF NATIONS; emphasis on what is termed "isolationism". Didn't want to get involved in foreign security nations. (look at League of Nations.)
"Collective self security" is what the states attempted to do -- would gang up + attack another if they were considered to be in breach.
At this time, US did not want to back Europe interests; didn't want to back Colonial interests in case they wanted to "put down" the rebellion in parts of Africa. -- CAN YOU BE HUMAN IN A HUMANITARIAN MILITARY CONTEXT? -- intervention might be economic, or aid, or in the form of medical supplies. BUT when humanitarian intervention is spoken about in states today, it's usually in a military form. Frank & Rodley 1973, post Bangladesh : !
“[A] usable general definition of 'humanitarian intervention' would be extremely difficult to formulate and virtually impossible to apply rigorously ....”
Bangladesh -- used to be East Pakistan; typified by a Bangoli population. In 1971 certain league won power in East Pakistan, West Pakistanis concerned about autonomy + initiated military action; systematic assault on the population. Then Urugunday initiated an intervention, claiming it was due to humanitarian intervention.
Difficult to tell; ALSO odd when a country declares it's under humanitarian intervention. Constituional problem -- what's intervention? Are they specific intervention? target some units; punish certain units? What are the limits? 1921, Stowell (must be in relation to world war one)
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“reliance upon force for the justifiable purpose of protecting the inhabitants of another state from treatment which is so arbitrary and persistently abusive as to exceed the limits of that authority within
which the sovereign is presumed to act with reason and justice.” -- ALMOST A NATURAL REASON CONCEPT. CERTAIN ENTITLEMENTS A STATE'S POPULATION IS ENTITLED TO; AN ABUSE OF THEM IS WRONG. THERE IS A NOTION OF RESPONSIBILITY TO PROTECT Is it useful to identify something for humanitarian intervention; e.g, climactic disturbance or environmental catastrophe qualify as a "human catastrophe" that requires intervention.
--> E.G CHERNOBYL IN SOVIET UNION, which resulted in massive radioactive leaks; posed illness throughout the years, e.t.c, couldnt drink milk, 't what point is a party entitled to go in? -- FORMS
"Rescuing" the citizens -- e.g. if Australians were holed up in Indonesia -- if govt was to rescue them it'd be to save them for distress & for fear harm would be done to them. !
Sometimes, that argument has been used to justify the rescue of a state’s nationals in another country for reasons of “legitimate self-defense” or an emergency to save lives, or the principle of non-derogation of a state’s right to protect its own integrity. IF
YOU ARE UNDER THREAT/ HARM IN ANOTHER COUNTRY, IT'S LIKE THREATENING AUSTRALIA ITSELF. "Non-derogation of a state's right to protect it's integrity." •
TERM OF HUMANITARIAN IS AVOIDED HERE.
Where are the limits; where do you start + stop? Embargoes? E.T.C? Military? When it comes to rescue ?
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(1) imminent threat of injury to nationals; (2) failure or inability on part of the sovereign to protect those nationals; (3) measures of protection confined to objects of protecting them against injury: see C.H.M. Waldock, “The Regulation of the use of Force by Individual States in International Law” 82 (1952) Recueil des cours 455, 469. -- I.E, YOU CAN'T INVADE A COUNTRY + THEN PROCEED
TO RECONQUER IT ON THE PREMISE THAT THERE'S A SMALL GROUP OF NATIONALS YOU WANT TO PROTECT: DISPROPORTIONATE. •
HOWEVER, CITING THE ARGUMENT THAT YOU ARE RESCUING THIS GROUP OF PEOPLE BEFORE ATTEMPTING TO DISABLE THAT COMMUNITY HAS OCCURED BEFORE.
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• SOMETIMES AN ACT OF "LEGITIMATE SELF DEFENSE" -- YOUR NATIONALS ARE REFLECTIONS OF THE STATE'S SOVEREIGNITY; OUR ABILITY TO NOT BE IMPEDED.
• ORIGINS OF HUMANITARIAN INTERVENTION IS NOT NEW Thomas Aquinas -!
a sovereign had the right to intervene “in the internal affairs of another when the latter mistreats its own subjects beyond the limits of what seems acceptable" -- a question of degree.
Grotius; "father of international law" [systematised it in texts] [16th C] REITERATES the idea of humanitarian intervention.
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When a despot “should inflict upon his subjects such treatment as no one is warranted in inflicting, the exercise of the right vested in human society is not
precluded” -- COLLECTIVE RIGHT THAT OTHER STATES HAVE WHEN A LOCAL DESPOT/TYRANT DECIDES TO OPPRESS THEIR OWN PEOPLE. ALMOST AN INALIENABLE RIGHT; AN OBLIGATION.
de Vattel (1758) (Aquinas, Grotius + de Vattel; all natural law). Reflects a general sense of where this need for intervention stems from. !
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“If a prince, by violating the fundamental laws, gives his subjects a lawful cause for resisting him; if, by his insupportable tyranny, he brings a national revolt against him, any foreign power may rightfully give assistance to an oppressed people who ask for its aid” -- EXAMPLE OF EXTERNAL HELP PROVIDED FOR LOCAL REBELLION. WERE SUGGESTION INTERVENTION COULD BE USED TO STOP HUMAN RIGHTS PROBLEMS; LOCAL RESISTANT DEMONSTRATES THAT THERE ARE ISSUES + IT'S INCUMBENT ON OTHER COUNTRIES TO HELP.
• • 19TH CENTURY:
Russia intervening on behalf of Christians in Bulgarian, Turkey, Bosnia + Herzegovina in 1870s. For Russia, the fact that their (Orthodox) Christian nationals (esp Slavs) were being persecuted was
cause for intervention. As Russians are Christians too, they can claim them as part of a national identity, and also part of their "interests". HUMANITARIAN INTERVENTION;
Oppenheim, 1905; !
“its own subjects or part thereof with such cruelty as would stagger humanity -- ONE'S CONSCIENCE OUGHT TO BE OUTRAGED, public opinion of the rest of the world would call upon the powers to exercise intervention for the purpose of compelling such a state to establish a legal order of things within its boundaries sufficient to guarantee to its citizens (safety) an
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existence more adequate to the ideas of modern civilisation." - MIND: NO SPECIFICS AS TO HOW INTERVENTION SHOULD OCCUR; COALITION OF PEOPLE? WILLING STATES? E.T.C?
• • Shawcross -- 1946, from the Nuremberg Trials/on the NT -- when the rights of were trampled upon this would entitle humans to intervene. USES the term "the right of humanitarian intervention". !
“[T]he right of humanitarian intervention, in the name of the Rights of Man trampled upon by the State in a manner so
offensive to the feeling of Humanity, has been recognised long ago as an integral part of the Law of Nations” - STILL SOME MISHAP ON WHETHER IT'S A RIGHT OR AN OBLIGATION. STILL DOESN'T SAY HOW IT OUGHT TO BE DONE. SUSPICIONS OF INTERNATIONAL HUMANITARIAN INTERVENTION HAVE NOT PASSED; •
1986 -- British study on how humanitarian intervention was considered + how it ought to be applied -- many concluded that the majority of contemporary legal opinion was against the existence of any right to humanitarian intervention. 1) UN Charter + body of international do not specifically incorporate the right. (THIS IS DUE TO VAGUENESS.) IRONIC considering older lawyers say it does exist, but point that many others don't believe it. 2) State practice for the last 2 centuries since 1945 suggest only a FEW cases of genuine humanitarian intervention if at all. [on closer inspection, doesn't seem it] 3) On "prudential grounds" -- NOT WISE to havve such a right - - abusing such a right argues against it's creation. CREATES A DANGEROUS PRECEDENT. ( British Yearbook of international law, 1986.) e.g; League of Nations institutionalised morality in an unacceptable way; ordered states to attack so called outlawd regimes.A 'trick" + dangerous -- once you have these humanitarian interventions + wars for the name of rights, you also have wars of exterminations. Schmitt -- humanitarianism would be used to justify extreme wars. ( Iraq?) BANGLADESH CASE; !
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1971 – allegations by India that Pakistan was alleging massive human rights violations of East Pakistan/East Bengal. STILL don't know how many people died. INDIAN INTERVENED MILITARILY. Due to this, (West) Pakistan suffered a heavy loss + East Pakistan separated; became Bangladesh. then minister;
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“the mother state has irrevocably lost the allegiance of such a large section of its people … and cannot
bring under its sway, conditions for the separate existence of such a state comes into being”. !
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At the point India intervened there WASN'T meant to be/going to be interventntion.Suggested India intervened on behalf of it's nationals.
Long-running theme of allegiance; once a group no longer owes allegiance to the group they belong to, they're allowed to revolt + receive assistance from the outside. PAKISTANIS say that this was a security intervention; East Pakistani security was getting "dangerous" + an intervention was necessary.
• • TO INTERVENE OR NOT; -- Sovereignity; do we accept it in it's guise, or is it a minimised/reduced version. -- State sovereignty challenged; we live in a POST WESTPHALIAN SOCIETY w. international interests + laws. (i.e; STATES ARE NO LONGER SUPREME AUTHORITIES WHO MAY DETERMINE ISSUES OF RIGHTS + INTERESTS FOR IT PEOPLE. IS SOVEREIGNITY STILL QUALIFIED? THERE'S NO SUCH THING AS EQUAL STATES, AFTER ALL.) May now be restricted by this doctrine of humanitarian intervention. SOVEREIGNITY STILL REINFORCED IN THE UN;
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The UN Charter, Art 2(7): “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” -falls into the same sort of UNSC idea; does it threaten any other force? furthermore, territorial integrity is paramount. security council resolution needs to be granted to authorise intervention.
• • Kofi Annan, UN S-G; presided over UN Human Rights drafting "one of the more notable revolutions". One idea he proposed was the responsibility to protect doctrine; led to human security.
Kosovo Interventionin 1999 -- now a province that the Serbs claim it as the fundamental birthplace of their identity. Battle of the Blackbirds. It was Serbian v.s Kosovo Albanians -- saw an intervention by NATO forces; aerial bombing campaign that subjected to Serbia to a "considerable period of tactical bombing". SUPREME AERIAL FORCE TARGETING SPECIFIC POINTS. Others; "justified intervention to prevent massacre on the ground." Annan defended the Kosovo Int ervention -!
“…if humanitarian intervention is, indeed, an unacceptable assault
on sovereignty, how should we respond to a Rwanda, to a Srebrenica (Bosnian Muslims) – to gross and systematic violations of human rights that affect every precept of our common humanity?” -- I.E, what do we do then? Kosovo Interventionin 1999 -- now a province that the Serbs claim it as the fundamental birthplace of their identity. Battle of the Blackbirds. It was Serbian v.s Kosovo Albanians -- saw an intervention by NATO forces; aerial bombing campaign that subjected to Serbia to a "considerable period of tactical bombing". SUPREME AERIAL FORCE TARGETING SPECIFIC POINTS.
KOSOVO;
Tried to prevent the continued ethnic cleansing of Albanians in Kosovo. Involved removal + relocation of 10s/100,00s of Kosovo Albanians from their homes. Argument made by NATO Bombing (Mar 24, 1999) -- NO PRIOR UN SCAUTHORISATION -(considering that Russia + China were members of the UNSC, they would have vetoed.) ORIGINALLY HIGH TECH BOMBING; AERIAL STRIKE ON STRATEGIC TARGETS IN KOSOVO, even tv networks + SERBIA ITSELF. (ground troops came later.) (Wasn't focused no Kosovo; seemed almost punitive towards Serbia.) Missile hit the Chinese embassy in Belgrave + killed three Chinese people in there. Said to be a mistake, but how do you intervene this? It crippled the infrastructure of an enemy state. -- Humanitarian intervention should be restrained as much as possiblee; meant to minimise human loss, that said, WEAPONS WERE V. TECHNICALLY ADEPT.
-- If there was no UNSC resolution, it might impune the legality of any action, even IF it was deemed humanitarian. !
It was in contravention of international law – UN Article 53: “no enforcement action shall be taken under regional
arrangements arrangements or by regional agencies without the authorization of the Security Council” Lincoln called it the fist humanitarian war; the beginning of humanitarian intervention. KOSOVO PROBLEMS;
- e.g, civiilans; only certain groups may profit here, e.t.c. who are you fighting against? BIG WINNERS HERE; Kosovo Liberation Army, as NATO was bombing their enemies (Serbian forces). BUT the KLA also ocaused a fair share of destruction; should NATO have intervened here, too and helped out? KOSOVO DEFENDERS;
- Tony Balir former Brit President, Pr esident, Clinton + Kofi Annan; 'new norm of international intervention". !
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Justified in cases where violent repression of minorities exist, involving crimes against humanity, ethnic cleansing, violation of the Geneva Conventions. THEREFORE trumps domestic jurisdiction of states despite Article 2 (7). "Kosovo Norm" supersedes domestic jurisdict. therefore, now in a postWestphalian order.
• BUT? • CRITICS: - Sets a dangerous precedent ( Yearbook, 86.) - Nullifies the veto of the major powers (I.E; UNSC) when it comes to the Kosovo Precedent. - Enables states w/o formal authorisation from the SC to attack another state. If THIS is the case, what role does an intl system have if states are allowed to attack others on the basis of humanitarian intervention? KOSOVO: SINGULAR?
ARGUMENT ARGUMENT THAT WE SHOULD SHOULD NOT NOT DRAW A GENERAL CONCLUSION. CONCLUSION. Bruno Simma, 1999 -- singular exercise of force. We should not, however, change the rules simply to follow our humanitarian impulses ( saw it as dangerous ); we should not set new standards only to do the right thing in a singular case. (e.g; do right in Kosovo, but don't do it the same.) The legal issues presented by the Kosovo Crisis are particularly impressive proof that hard cases make bad law." no way of replicating it; also so open it is susceptible to abuse, a la the Yearbook. RETROSPECTIVE; KOSOVO MIGHT HAVE BEEN JUSTIFIED. !
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By 1999, the Security Council had “founded” three norms of international law: (a) the right to intervene for humanitarian reasons; (b) international criminal courts eg Rwanda, Yugoslavia; and (c) supervision of free elections or interventions designed to promote social, political and economic reconstruction within a country – process known as “consolidation of peace”
-- IE UNSC UNSC AT THIS THIS POINT POINT WAS INTE INTERES RESTED TED IN IN THESE THESE "PRO "PROJEC JECTS" TS" OF OF POTENT POTENTIAL IAL HUMANITARIAN INTERVENTION, BUT ALSO THE IDEA OF RECONSTRUCTION + PUNITIVE EFFORTS. Kosovo Crisis -- where does it sit in international law + rights? (the development of)
ushered in some sort of humanitarian lust. such humanitarian neo-interventionism unclear where it begins/ ends e.g jurist Legaut 2000 -!
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“… we are now at the intersection of two phenomena: how to assure human security in the context of ‘majorization ‘majorization of minorities’?” - paradox of international intervention v.s protecting the safety of "minorities"/national groups. (e.g; how to protect both majorities + minorities?)
• • • IS SOVEREIGNITY LIMITED? post-Kosovo, International Commission on Intervention + State Sovereignity in 2000 created, to examine the limits of intervention + when it was required. RESPONSIBILITY TO PROTECT AS A DOCTRINE IS THE RESULT OF THIS DOCUMENT. !
The theme of the report “The Responsibility to Protect” – “the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, rape, from starvation – but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states .”
Report of the International Commission on Intervention and State Sovereignty (2001) •
- NOT A RIGHT TO INTERVENE ANYMORE, BUT NOW AN OBLIGATION; A RESPONSIBILITY. NOT STATES NEEDING TO INTERVENE B/C THEY HAVE A RIGHT; IT'S A NECESSITY, AN OBLIGATION. SHIFT IN LANG.
Commission agreed:
-- SC authorisation must be in all cases sought prior to any military intervention action being carried out. -- Formal request for such authorisation or have the Council raise the matter on it's own initiative. -- OR the S-G might raise concerns that intervention is required under Article 99 of the UN Charter. -- Commission STILl trying to be conservative here. -- Security Council SHOULD DEAL PROMPTLY (speed) w. any request for authority to intervene where there are allegations of large scale loss of human life or ethnic cleansing. -- e.g Kosovo Interntion should have occurred earlier to prevent the amount of catastrophe, although some say that it accelerated the ethnic cleansing; those Albanians being expelled were killed quicker/expelled quicker. -- Needs to seek adequate verification of facts or conditions on the grounds to determine if humanitarian values had been sacrificed; not just from the sky or from word of mouth. that might support a military intervention. (SHOULD ALSO BE EXAMINED WITH EVIDENCE, IN OTHER WORDS.) To prevent the PP/P5 of UN from misusing their veto, suggested a code of conduct in dealing with human catastrophe (article 51); could not misuse their veto to prevent action from taking place. IF SC does not reaction, potential intervention via t he General Assembly. (they can only make recommendations thug; a strange idea.) (Uniting for Peace.) Use of regional organisations (sugg. 53) such as NATO, though controversial -- considering Kosovo. Difficult to police; can be misused. E.G Kosovo but only AFTER NATO had intervened did the UNSC approve what happened. "Dangerous" -- still doesn't allow formal elements of the UN to deal with what's appropriate, what's not. R2P's suggestion for LIMITS:
-- Operation terms for responsibility to protect will differ from military language used when fighting for gain. e;g; -- Objective is to protect populations, not to defeat, neutralise or destroy the enemy. -- Inflict as minimal harm as possible to the civilian population. -- Minimise damage to state to enhance recovery prospects in post-conflict phase. (IDEAL CASE IN HUMANITARIAN INTERVENTION IS THAT IT'S TARGETED, SPECIFIC, AND MINIMISES HARM SO THAT THE STATE CAN RECOVER QUICKLY.) Difficult because when implementing the R2P, it doesn't work v. well -- e.g, think of Libya. Is it feasible? R2P feasible at all? Summary of Report:
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"If the international community is to respond to this challenge, the whole debate must be turned on
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its head. The issue must be reframed not as an argument about the 'right to intervene' but about the 'responsibility to protect.'" -- CONSIDER R2P IN 2000, AGAIN; IT'S TO PROTECT SOMEONE ELSE. It shouldn't justify broader strategic interests, although it's hard. In 2005, when the responsibility to protect doctrine was incorporated into UN doctrine, environmental disasters had been dropped as a reason for intervention. (Although commission said that the international community could intervene if the state failed in it's responsibility to protect it's population.)
• • "Responsibility to protect a watershed moment, marking the end of a 350-year period in which the inviolability of borders + the monopoly of force within one's own borders were sovereignty's formal hallmarks." (against UDHR article 2(7) + Westphalian society) Look up Geneva Convention , International Crimainal Court, League of Nations + Rome thang. Look up organisations; those that can create international criminal courts.
WHAT ABOUT LIBYA?
-- NATO APPEARS HERE TOO. - EXAMPLE OF R2P -- Said it prevented an imminent massacre. !
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Libya case study in 2011 Responsibility to protect used to JUSTIFY ATTACKS HERE Preventing massacre in Benghazi (imminent!) The use of No-Fly Zones (to prevent Libyans) Were the NO-FLY ZONES to prevent attacks from Libya. Was the purpose of the NATO led enforcement of the zones “regime change” or genuine limited intervention? The result was, but the initial stated goals did not state that; suggested it was simply searching for humanitarian intervention. David Rieff’s summation may be correct: there are no
humanitarian solutions to humanitarian problems: !
POWERPOINT TEN "most important document" -- convention on the rights of the child from 1989; v. important.
-> Growing body of case law re; children in international conflict, but also domestic conflict. Either participants OR victims of conflict. -- Revision; humanitarian intervention Has it been misused? Ideological premise to substitute for something else? Deemed a tool/a conceit when they say it's r escue/they intend to save other lives. !
Sometimes, that argument has been used to justify the rescue of a state’s nationals in another country for reasons of “legitimate self-defense” or an emergency to save lives, or the principle of non-derogation of a state’s right to protect its own integrity
Elements of valid "rescue" -- imminent threat of injury to national/failure or inability on part of the sovereign to protect those nationals + measures of protection confined to objects of PROTECTING THEM AGAINST INJURY SOLELY. NO FURTHER ATTEMPTS TO DESTABILISE THE COMMUNITY. ('52) - Waldock
de Vattel, 1754; assistance can be provided for insurrection in a territory. e.g there are Realpolitik interests in Syria, but those insurrectioners against Al-Asshad do not to be supported + protected. Kosovo -- need to recall it's a singular conflict; Simma says that as it can't/isn't likely to be repeated, we should not set new standards for it. It's "unfollowable" -- Clinton + others said it was "the first humanitarian war".
UNSC ignored here; the International Commission on Intervention formed in 2000 past Kosovo suggested that this could happen, Yearbook in 86 suggested that this suggested a dangerous precedent.
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The issue must be reframed not as an argument about the 'right to intervene' but about the 'responsibility to protect.'" (language shifted). brings out the humanitarian element more; right to intervene sounds sovereign; responsibility/ obligation sounds like a need: NOT an imposition. Issue was still determining where humanitarian intervention fit into the Charter since 2005; adopted later, although environmental interests were redacted.
• HUMANITARIAN INTERVENTION; -> specifically targets wrongdoing; NOT to destroy the enemy. inflict as minimal harm to the civilian population & minimise damage to states so it can recover. CRITICS;
Marx -- human rights an illusion. Bentham -- rights are nonsense upon stilts; require legality. Marxists, e.g. "human rights ideological; masks human relations. Used as a weapon + crafted as one to justify power." (think of this in relation to U.N) Chomsky: "humanitarism has become an ideology of sorts." ( critical of Kosovo.) Post Cold War, could be used as an excuse to interfere in the affairs of other states. EG intervention to punish
"naughty states". CRUISE MISSILE LEFTISM; at this point, split between progressives + liberals in 1990 as to whether humanitarian intervention could be justified. happend oner kosovo.
Chomsky, right "Kosovo should not have taken place/interventionism." Left; "Should have occurred". Neo-conservative version of Leninist Bolshevism; some on the left who agree foce is required, some on the right who also accept it. Previously on the "left" of the politics; these days, some of the most conservative. WAR ON IRAQ; 2003; DAMAGED THE IMAGE OF HUMANITARIAN INTERVENTION.
Idea was that Saddam Hussein had weapons of mass direction, which didn't truly exist. Bush argued that it was a humanitarian mission to remove Saddam Hussein. Massively damaging though. HUMAN RIGHTS WATCH; use of military force for humanitarian goals seems cynical. Human rights a weapon?
Conor Gearty + Michael Ignatieff. Gearty called Ignatieff the "virus in the human rights movement." Ignatieff; post 9/11 "certain circumnstaces where torture could be justified + boundaries could be penetrated, so as to prevent human rights." HUMANITARIAN INTERVENTION THOUGHT TO BE PART OF THIS MIX. !
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Ignatieff: “necessity may require us to take actions in defence of democracy which will stray from democracy’s own foundational commitments to dignity.” TO DO TERRIBLE THINGS FOR A RIGHTEOUS CAUSE. Gearty concerned; Ignatieff suggesting that it's okay to invade a country b/c the country has a tyrant at it's head; we can torture an individual b/c that
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individual will be useful to us. Says you can't call it humanitarian intervention if you're engaging in the same sort of evil; it's hypocritical. Ignatieff; you have to engage in acts of lesser evil to stamp out greater evil. GEARTY from London School of Economics; attacks the righteousness of the cause that justifies these evils. ON IGNATIEFF; “Michael Ignatieff has been useful to the US government as it has tried to promote democracy in the middle east. He brings to this unofficial job a special, doubleedged approach: he provides conservative arguments to the liberal audience and liberal alibis to the conservatives”: Mariano Aguirre, “Exporting Democracy, Revising Torture,” http://www.opendemocracy.net/democracyamericanpower/ jefferson_2679.jsp (JUSTIFIES THE USE OF FORCE; JUSTIFIES IT IN INVADING
COUNTRIES; provides an alibi + therefore an alibi for humanitarian imperialism.) !
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Jean Bricmont -- "selling of human rights" -- has been commodified in the context of war. Being "sold" to justify the use of force. You want to sell it to the public; by justifying what's happened; say this person is wicked, this regime is disgusting -- would anybody miss it if you intervened?
Humanitarian intervention is simply another ideology in the post Cold War vacuum which was marketed v. effectively. Simly another form of "liberalism" which has been used for example by President JFK for interventions in Indochina & America (get rid of the dictatorships that weren't friendly to America, prop up those who are.) Bricmont; everything to do with the IMAGE of human rights. HUMANITARIAN IDEOLOGIES;
Bernard Kouchner, Doctors Without Borders -- example of how humanitarianism is used as a weapon. Some say HI on a whole is politically motivated; if you're giving aid, you want to reform a country/place -- e.g Australia gives aid, expects them to qualify or reach a certain political level. Doctors sans frontières; trying to combine the adventurism of communism w. that of humanitarianism (furthering humanitarian goals) +he advocates the use of force, although contrary to a doctor's interests. Supported Kosovo + Libya intervention. Conor Foley; talks about how humanitarisnm has become subordinate to war -- wars have become humanised? (like Bricmont) -- bring in the NGOs + Amnesty International + then you can get a "morally better war". !
Foley: “bodies that were established to alleviate human suffering could, on occasion, be given the task of making the case for war.” (e.g Amnesty International; find a reason that there's a breach. Perhaps they think war is necessary in order to create a better world? Perhaps they think war is necessary in order to create a better world.)
SAVE DARFUR; - How should justice in the international community happen here? Punish rogue states in the idea of a human ideal. !
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Mahmood Mamdani, Saviours and Survivors (2009): “the Save Darfur lobby demands, above all else, justice, the right of the international community—really the big powers in the Security Council—to punish ‘failed’ or ‘rogue’ states, even if it be at the cost of more bloodshed and a diminished possibility of reconciliation…. In its present form, the call for justice is really a slogan that masks a big-power agenda to recolonize Africa .” -(whites can democratise; turn it into a clone of you. this is a clear possibility.) (uses humanitarianism to further border goals; topple the dictator, secure assets. simply a smokescreen that lets you do something greater.)
Rieff: "there are no humanitarian solutions to humanitarian problems". BUT THE USE OF FORCE IS PART OF POWER; STATE POEWR, MORE SO. STILL AN EXERTION OF BRUTE FORCE. CHILDREN'S RIGHTS General acceptd principles for kids --
NOT TO BE INVOLVED IN WAR + CONFLICT. TO HAVE DECENT HOUSING, HABITATION + SANITATION. TO HAVE DECENT EDUCATION. TO HAVE AN ADEQUATE HOUSEHOLD TO BE RAISED IN. TO BE ADEQUATELY FED. Exists in a "rubric' of other conventions -- NOT stand alone thing; exists alongside other obligations/ rights. e.g international covenant for civil + political rights (1986) have protections for juveniles. or torture; juveniles shouldn't be tortured or held of extended periods of time/detention. !
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Convention on the Rights of the Child (1989) -- also part of an interlocking laws + rights International Covenant on Civil and Political Rights (ICCPR); International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (CAT), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
MOST IMPORTANT CONVENTION; INTERNATIONAL CONVENTION ON THE RIGHTS OF THE CHILD. (1989).
- one of the most signatures of all time. - Australia ratified in 1990 + need to ensure all chidden in Australia enjoy the rights set out in the treaty. also has a follow up monitoring mechanism that requires nations to make reports on their progress. -- some progress HAS been made to obtain it's goals. Rights in the CRC: (FIRST DOCUMENT TO DEAL W. CHILDREN IN A SPECIFIC CONTEXT.)
- to survival + development + respect for the best interests of the child (Family Law Act in 1975) -- PARAMOUNT consideration. as a PRIMARY consideration.
- right of all children to express their views. BUT at what point is a child sufficiently aware to consent to procedure? (sexual consent, for example, is at 13.) - right of all children to enjoyy all the rights of the CRC w/o discrimination (e.g no Plessey v. Ferguson instance.) rIGHTS:
- always at a disadvantage for their perceived vulnerability + inability to seek legal advice, esp int arms of customary international law. BUT not interns of international agreements guarding their welfare. (i.e; there are agreements, expectations on what should be done, but no legal ramifications.) Conventions are made to deal with this; e.g, the UN Convention on the Rights of the Child 1989. - CRC ATTEMPTS TO ADDRESS THIS; advisory law not merely declaratory. ADVISORY LAW ISSUES GUIDELINES; SIGNATORY COUNTRIES HAVE AN OUTLINE OF WHAT NEEDS TO BE DONE. DECLARATORY PROVIDES NO ADVICE OR INSTRUMENT TO EXTEND IT FURTHER; E.G, THE UDHR. CRC OBLIGATES STATES TO IMPLEMENT IT'S MEASURES. CRC; Puts an emphasis on monitoring , tells all it's signatories it has to do this. e.g; every 5 years Aus gov has to submit a report on what it's doing to protect & promote the rights contained in the Crc, the progress that has been made in protecting & promoting these rights & the obstacles + problems that have been encountered in implementing the CRC. (i.e the length of how it's being complied to.) Refugee problem in Australia is an example of where we're not complying; children in these facilities leaves a debate as to whether the CRC is being complied w.Detaining children like that is a violation.
UN receives these reports from Australia, but also, "shadow reports". e.g; NGOs make their own reports. AUSTRALIAN'S COMPLIANCE; - Noticed with the genocide, Narulyama; e,g CRC is NOT part of Australian law but takes into account complaints, just as the HREOC takes the CRC into account.
Most important body in observing rights is the HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986. Examines compliance with the CRC; has an official role to PROTECT + PROMOTE CHLDREN'S RIGHTS. HREOC can make recommendations + note breaches, but they're not enforceable Power of recommendation + power of shame is, to some degree, sufficient enough. To have an official law-body in the HREOC would mean that the Cth would be more resistant than it currently is. Same goes for the way we've signed up for the genocide convention, but we don't have law ratified here. YES; there are legitimate expectations of what human rights should occur here, considering that we've ratified it; same goes for the CRC (86) CRC may be reflected in certain mandates; Family Law Act, for example.
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Specific rights of protection at IHRL
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Article 37(c) of the CRC states that “[e]very child deprived of liberty shall be treated with humanity and respect for inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age” -I.E, DETENTION SHOULDN'T OCCUR. Problems in refugee law
CHILDREN + WAR:
Various conflict zones use child soldiers -- e.g, Lord's Army + Congo. Instances where it's been v. conspicuous; Sierra Leone + Congo. CRC says that this is a crime to conscript children. International law prohibits the use of children in war. Seeks to protect children from hostilities. What if children enlist? -- it appears that they have a choice, but DO they really? can they volunteer their surfaces in a truly legal way? When they've served in these armies, argument that there's a "mutual process of brutalisation". So they're dehumanised, but war's also made them killers. Should neither be enlisted nor be the victims of war. THEY HAVE BEEN TARGETED -- e.g. 1994 Rwanda; "to kill the big rats, you have to kill the little rats". -- stamp out the race. International Criminal Court has jurisdiction to punish such crimes. it is a crime at international law to enlist these soldiers + make them fight in a war. CRC EMPHASIS ON MATTERS OF WAR; WHERE DO CHILDREN FIT HERE?
Children to be protected against exploitation + violence. Protection against torture (torture convention out laws this too) + any other cruel, inhuman or degrading treatment or punishment. Emphasises family reunification; if separated, then they will try to reunify the child. Having a name + a nationality = have an identity. (What would it be like without this? Who would you be?) !
Article 38 of the CRC [1986] calls on States Parties to apply
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the rules of international humanitarian law that are relevant to the child, and to take every feasible measure "to ensure protection and care of children who are affected by armed conflict." - this is for ALL signatories. even if one of these signatories is involved in war; even if it's internal conflict or no. BUT some of the most brutal instances of these violations are internal. Article 39 of the CRC refers to the need for physical and psychological recovery and social reintegration of child victims. (try to help the damaged child back into society. "no," she said. "i'm too damaged.") BUT CHILDREN WHO ARE INFLICTED BY CONFLICT
CAN HAVE AN AMOUNT OF TRAUMA THAT'S DIFFICULT TO REINTEGRATE THEM WITH. ARE THERE THE MEANS + FACILITIES TO DO THIS? OBLIGATION MORE SO RIGHT. • !
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“How can we tell what happened to us? There are no words to describe what we have witnessed. What we saw, what we heard, what we did, and how it changed our lives, is beyond measure. We were murdered, raped, amputated, tortured, mutilated, beaten, enslaved and forced to commit terrible crimes.” - Truth + Reconciliation Commission Report for the Children of Sierra Leone in 2004. BOTH TURNED INTO PERPETRATOR + RECIPROCANT OF VIOLENCE. 'Children are the greatest fanatics of all.' - Give em a gun and the facilities to kill, and they will.
Having a name + a nationality = have an identity. (What would it be like without this? Who would you be?) ACCOUNTABILITY FOR VIOLENCE? IS IT RESPONSIBILITY? CAN YOU PROVE INTENTION?
Harder with children; both brutalised AND being brutalised. International community doesn't have a consensus on what age a child is held criminally responsible. HAVE STRUGGLED TO REACH CONSENSUS AT WHAT AGE … When can they be tried? CRC defines a child as anyone under 18. Some specific provisions in international conventions; e.g, don't unlit anyone under 15 to fight in a war. CRIMINAL LIABILITY CONSISTENT.
Proetctions of the CRC don't include immunity from prosecution + punishment other than capital punishment or life mprisonment without possibility of release (what would it be like if a child was on trial? Was he brutalised?? No? What if he was an interesting character; curious; frightening?) STILL DON'T HAVE A CLEAR SENSE OF WHAT THE MINIMUM CRIMINAL LIABILITY IS; e.g !
“[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes”: -- Office of the Special Representative of the Secretary-General. We simply don't really know.
Age of 15 usually the measure as t o whether allowance should be made for children i n conflict; whether they can enlist. !
“If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while
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associated with armed forces or armed group” (needs to match up, otherwise unfair. those considered children need to be treated as victims. needs to match up.) (crisp, sparse language + unapologetic, unremitting, unrelenting characters.)
Emphasis on restorative justice; DON'T punish them, see how you can restore them to peaceful working orders. Responsibiltiy to try & reintegrate the child, ater all. Want to rehabilitate them. Rome Statute/ICC makes the recruitment + use of children in armed forces/groups a WAR CRIME. Those associate will be war criminals. (ARTICLE 8 (2)E, 19 98.)
aRGUMENT MADE THAT STATES SHOULD CONCENTRATE ON PROSECUTING ADULT RECRUITERS + COMMANDERS FOR THE CRIME OF CHILD RECRUITMENT + CRIMES FORCED CHILDREN TO COMMIT. Punitive punishment for adults, rehabilitation for children. THEY'RE responsible for the war machine. (Working Paper from the Special Assistant to the UN SG; look this up..) INTERNATIONAL CRIMINAL COURT + 'INNOVATIVE, ALTERNATIVE MECHANISMS'.
-- allows evidence + witnesses to allow children to seek justices if they are victims of international crimes, directly or not. children cn participate in a trial w/o necessarily having to give evidence. emphasis on treating kids as victims. other measures to supplement strictly legal ones; - tribunals, restorative models, commissions, committees to investigate whether human rights have occurred Truth and Reconciliation Committees in Sierra Leone that deals with child testimony. Do their best to uphold the CRC; complies best it can w. the principles of the CRC. CASE LAW; (some we need to recall; genocide, Narulyama, found Aus didn't ratify any egnocide conventions + wasn't responsible) e.g; Lubanga Case (Congolese Warlord); recruited cildren. Went to the ICC in 2012. (Democratic Republic of Congo in Prosecturo v. Lubanga.)
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Thomas Lubanga Dyilo found guilty on charges of conscription and enlistment of children under the age of 15 by using them to participate actively in the ongoing armed conflict in Ituri. OFFENCE. Judgment is relevant since according to the Trial Chamber it extends to any armed group within the context of a noninternational armed conflict and within the ambit of international humanitarian law. -- i.e. does not STRICTLY SPEAKING HAVE TO BE AN INTERNATIONAL ACT; CAN BE LOCAL. CAN HAVE SOME INTERNATIONAL ACTORS -E.G, AGAIN WITH SYRIA -- BUT DOESN'T HAVE TO BE.DOMESTIC CONFLICT BUT INTERNATIONAL HUMANITARIAN LAW STILL
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APPLIES. The Chamber held that the offences of ‘conscripting’ and ‘enlisting’ are committed at the moment a child under the age of 15 is enrolled or joins an armed force or group, with or without compulsion” (Para. 618 Lubanga Judgment). [I.E; if they'd enlisted themselves, didn't matter.] - Child's ACTION was the critical thing; not the mental or their motives. WHAT DOES THE ADULT DO?
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Some consider this problematic as it doesn't consider the voluntariness of the situation; that said, is it appropriate to regard a child's consent as valid, esp. when they're under fifteen AND in a conflict situation? According to Lubanga, whether they volunteer or not is irrelevant. e.g; they won't be informed or aware. How do you prosecute those responsible for a crime if the crime's not PE RCEIVED as a crime by other offender or victim? e.g. might be a normal state of affairs locally. HOW/WHY SHOULD YOU PUNISH LUBANGA IF NEITHER VICTIM NOR WARLORD CONSIDERE IT A CRIME -- considering that not many in Sierra Leone consider it a crime; really, is quite normal? !
Is a child in law different from a
child in culture? CULTURAL CONDITIONS -- might in fact, CAUSE INTEREST OR IT JUST /OCCURS/? • • •
Prosecturo v. Normal in Sierra Leon; Sierra Leonean political, Sam Hinga Norma, charged w. war crimes, CAH including the recruitment of child soldiers. OCCURED IN 2004. (Prosecutor v. Norman)
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Norman argued that the Special Court could not try him for recruiting child soldiers because it was not a crime under international law during the years that the Prosecutor cited, beginning with the Special Court’s jurisdiction in 1996. [ LAW WASN'T VALID YET ???] Over the years is that an assumption/expectaton that enlisting child soldiers is bad; has been no specific case ON it, but it's become a norm not
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to criminalise. [FIRST OF IT'S KIND, THE NORMAN CASE.] Court: had become international custom and law even before 1996; e.g the CRC, Geneva Convention, African Charter on the Rights + Welfare of the Child, e.g.
NORM NEED NOT BE EXPRESSLY STATED IN AN INTERNATIONAL CONVENTION FOR IT TO CRYSTALLZE AS A CRIME UNDER CUSTOMARY INTERNATIONAL LAW. Lubanga (2012, Congo); child's mental state didn't matter, nor did it matter if the action wasn't considered a crime in their country; adult was still to be prosecuted. •
Norman: didn't matter if there were no laws on it; anit-child soldier recruitment was already considered a crime under customary international law.
POWERPOINT ELEVEN; "most important document" -- convention on the rights of the child from 1989; v. important.
-> Growing body of case law re; children in international conflict, but also domestic conflict. Either participants OR victims of conflict. -- Revision; humanitarian intervention Has it been misused? Ideological premise to substitute for something else? Deemed a tool/a conceit when they say it's r escue/they intend to save other lives. !
Sometimes, that argument has been used to justify the rescue of a state’s nationals in another country for reasons of “legitimate self-defense” or an emergency to save lives, or the principle of
non-derogation of a state’s right to protect its own integrity Elements of valid "rescue" -- imminent threat of injury to national/failure or inability on part of the sovereign to protect those nationals + measures of protection confined to objects of PROTECTING THEM AGAINST INJURY SOLELY. NO FURTHER ATTEMPTS TO DESTABILISE THE COMMUNITY. ('52) - Waldock
de Vattel, 1754; assistance can be provided for insurrection in a territory. e.g there are Realpolitik interests in Syria, but those insurrectioners against Al-Asshad do not to be supported + protected. Kosovo -- need to recall it's a singular conflict; Simma says that as it can't/isn't likely to be repeated, we should not set new standards for it. It's "unfollowable" -- Clinton + others said it was "the first humanitarian war".
UNSC ignored here; the International Commission on Intervention formed in 2000 past Kosovo suggested that this could happen, Yearbook in 86 suggested that this suggested a dangerous precedent. Commission: !
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The issue must be reframed not as an argument about the 'right to intervene' but about the 'responsibility to protect.'" (language shifted). brings out the humanitarian element more; right to intervene sounds sovereign; responsibility/ obligation sounds like a need: NOT an imposition. Issue was still determining where humanitarian intervention fit into the Charter since 2005;
adopted later, although environmental interests were redacted. • HUMANITARIAN INTERVENTION; -> specifically targets wrongdoing; NOT to destroy the enemy. inflict as minimal harm to the civilian population & minimise damage to states so it can recover. CRITICS;
Marx -- human rights an illusion. Bentham -- rights are nonsense upon stilts; require legality. Marxists, e.g. "human rights ideological; masks human relations. Used as a weapon + crafted as one to justify power." (think of this in relation to U.N) Chomsky: "humanitarism has become an ideology of sorts." ( critical of Kosovo.) Post Cold War, could be used as an excuse to interfere in the affairs of other states. EG intervention to punish "naughty states". CRUISE MISSILE LEFTISM; at this point, split between progressives + liberals in 1990 as to whether humanitarian intervention could be justified. happend oner kosovo.
Chomsky, right "Kosovo should not have taken place/interventionism." Left; "Should have occurred". Neo-conservative version of Leninist Bolshevism; some on the left who agree foce is required, some on the right who also accept it. Previously on the "left" of the politics; these days, some of the most conservative. WAR ON IRAQ; 2003; DAMAGED THE IMAGE OF HUMANITARIAN INTERVENTION.
Idea was that Saddam Hussein had weapons of mass direction, which didn't truly exist. Bush argued that it was a humanitarian mission to remove Saddam Hussein. Massively damaging though. HUMAN RIGHTS WATCH; use of military force for humanitarian goals seems cynical. Human rights a weapon?
Conor Gearty + Michael Ignatieff. Gearty called Ignatieff the "virus in the human rights movement." Ignatieff; post 9/11 "certain circumnstaces where torture could be justified + boundaries could be penetrated, so as to prevent human rights." HUMANITARIAN INTERVENTION THOUGHT TO BE PART OF THIS MIX. !
Ignatieff: “necessity may require us to take actions in defence of democracy which will stray from
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democracy’s own foundational commitments to dignity.” TO DO TERRIBLE THINGS FOR A RIGHTEOUS CAUSE. Gearty concerned; Ignatieff suggesting that it's okay to invade a country b/c the country has a tyrant at it's head; we can torture an individual b/c that individual will be useful to us. Says you can't call it humanitarian intervention if you're engaging in the same sort of evil; it's hypocritical. Ignatieff; you have to engage in acts of lesser evil to stamp out greater evil. GEARTY from London School of Economics; attacks the righteousness of the cause that justifies these evils. ON IGNA I GNATIEFF TIEFF;; “Michael Ignatieff has been useful to the
US government as it has tried to promote democracy in the middle east. He brings to this unofficial job a special, doubleedged approach: he provides conservative arguments to the liberal audience and liberal alibis to the conservatives”: Mariano Aguirre, “Exporting Democracy, Revising Torture,” http://www.opendemocracy.net/democracyamericanpower/ jefferson_2679.jsp (JUSTIFIES jefferson_2679.jsp (JUSTIFIES THE USE OF FORCE; JUSTIFIES IT IN INVADING COUNTRIES; provides an alibi + therefore an alibi for humanitarian imperialism.) !
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Jean Bricmont -- "selling of human rights" -- has been commodified in the context of war. Being "sold" to justify the use of force. You want to sell it to the public; by justifying what's happened; say this person is wicked, this regime is disgusting -- would anybody miss it if you intervened?
Humanitarian intervention is simply another ideology in the post Cold War vacuum which was marketed v. effectively. Simly another form of "liberalism" which has been used for example by President JFK for interventions in Indochina & America (get rid of the dictatorships that weren't friendly to America, prop up those who are.) Bricmont; everything to do with the IMAGE of human rights. HUMANITARIAN IDEOLOGIES;
Bernard Kouchner, Doctors Without Borders -- example of how humanitarianism is used as a weapon. Some say HI on a whole is politically motivated; if you're giving aid, you want to reform a country/place -- e.g Australia gives aid, expects them to qualify or reach a certain political level. Doctors sans frontières; trying to combine the adventurism of communism w. that of humanitarianism (furthering humanitarian goals) +he advocates the use of force, although contrary to a doctor's interests. Supported Kosovo + Libya intervention. Conor Foley; talks about how humanitarisnm has become subordinate to war -- wars have become humanised? (like Bricmont) -- bring in the NGOs + Amnesty International + then you can get a "morally better war". !
Foley: “bodies that were
established to alleviate human suffering could, on occasion, be given the task of making the case for war.” (e.g Amnesty International; find a reason that there's a breach. Perhaps they think war is necessary in order to create a better world? Perhaps they think war is necessary in order to create a better world.) SAVE DARFUR; - How should justice in the international community happen here? Punish rogue states in the idea of a human ideal. !
Mahmood Mamdani, Saviours and Survivors (2009): “the Save Darfur lobby demands, above all else, justice, the right of the international community—really the big powers in the Security Council—to punish ‘failed’ or ‘rogue’ states, even if it be at the cost of more bloodshed and a diminished possibility of reconciliation…. In its present form, the call for justice is really a slogan that masks a big-power agenda to recolonize Africa .” --
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(whites can democratise; turn it into a clone of you. this is a clear possibility.) (uses humanitarianism to further border goals; topple the dictator, secure assets. simply a smokescreen that lets you do something greater.)
Rieff: "there are no humanitarian solutions to humanitarian problems". BUT THE USE OF FORCE IS PART OF POWER; STATE POEWR, MORE SO. STILL AN EXERTION OF BRUTE FORCE. CHILDREN'S RIGHTS General acceptd principles for kids -NOT TO BE INVOLVED IN WAR + CONFLICT. TO HAVE DECENT HOUSING, HABITATION + SANITATION. TO HAVE DECENT EDUCATION. TO HAVE AN ADEQUATE HOUSEHOLD TO BE RAISED IN. TO BE ADEQUATELY FED. Exists in a "rubric' of other conventions -- NOT stand alone thing; exists alongside other obligations/ rights. e.g international covenant for civil + political rights (1986) have protections for juveniles. or torture; juveniles shouldn't be tortured or held of extended periods of time/detention. !
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Convention on the Rights of the Child (1989) -- also part of an interlocking laws + rights International Covenant on Civil and Political Rights (ICCPR); International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); Convention Against Torture and
Cruel, Inhuman and Degrading Treatment or Punishment (CAT), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) MOST IMPORTANT CONVENTION; INTERNATIONAL CONVENTION ON THE RIGHTS OF THE CHILD. (1989).
- one of the most signatures of all time. - Australia ratified in 1990 + need to ensure all chidden in Australia enjoy the rights set out in the treaty. also has a follow up monitoring mechanism that requires nations to make reports on their progress. -- some progress HAS been made to obtain it's goals. Rights in the CRC: (FIRST DOCUMENT TO DEAL W. CHILDREN IN A SPECIFIC CONTEXT.)
- to survival + development + respect for the best interests of the child (Family Law Act in 1975) -- PARAMOUNT consideration. as a PRIMARY consideration. - right of all children to express their views. BUT at what point is a child sufficiently aware to consent to procedure? (sexual consent, for example, is at 13.) - right of all children to enjoyy all the rights of the CRC w/o discrimination (e.g no Plessey v. Ferguson instance.) rIGHTS:
- always at a disadvantage for their perceived vulnerability + inability to seek legal advice, esp int arms of customary international law. BUT not interns of international agreements guarding their welfare. (i.e; there are agreements, expectations on what should be done, but no legal ramifications.) Conventions are made to deal with this; e.g, the UN Convention on the Rights of the Child 1989. - CRC ATTEMPTS TO ADDRESS THIS; advisory law not merely declaratory. ADVISORY LAW ISSUES GUIDELINES; SIGNATORY COUNTRIES HAVE AN OUTLINE OF WHAT NEEDS TO BE DONE. DECLARATORY PROVIDES NO ADVICE OR INSTRUMENT TO EXTEND IT FURTHER; E.G, THE UDHR. CRC OBLIGATES STATES TO IMPLEMENT IT'S MEASURES. CRC; Puts an emphasis on monitoring , tells all it's signatories it has to do this. e.g; every 5 years Aus gov has to submit a report on what it's doing to protect & promote the rights contained in the Crc, the progress that has been made in protecting & promoting these rights & the obstacles + problems that have been encountered in implementing the CRC. (i.e the length of how it's being complied to.) Refugee problem in Australia is an example of where we're not complying; children in these facilities leaves a debate as to whether the CRC is being complied w.Detaining children like that is a violation.
UN receives these reports from Australia, but also, "shadow reports". e.g; NGOs make their own reports. AUSTRALIAN'S COMPLIANCE;
- Noticed with the genocide, Narulyama; e,g CRC is NOT part of Australian law but takes into account complaints, just as the HREOC takes the CRC into account.
Most important body in observing rights is the HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986. Examines compliance with the CRC; has an official role to PROTECT + PROMOTE CHLDREN'S RIGHTS. HREOC can make recommendations + note breaches, but they're not enforceable Power of recommendation + power of shame is, to some degree, sufficient enough. To have an official law-body in the HREOC would mean that the Cth would be more resistant than it currently is. Same goes for the way we've signed up for the genocide convention, but we don't have law ratified here. YES; there are legitimate expectations of what human rights should occur here, considering that we've ratified it; same goes for the CRC (86) CRC may be reflected in certain mandates; Family Law Act, for example.
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Specific rights of protection at IHRL Article 37(c) of the CRC states that “[e]very child deprived of liberty shall be treated with humanity and respect for inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age” -I.E, DETENTION SHOULDN'T OCCUR. Problems in refugee law
CHILDREN + WAR:
Various conflict zones use child soldiers -- e.g, Lord's Army + Congo. Instances where it's been v. conspicuous; Sierra Leone + Congo.
CRC says that this is a crime to conscript children. International law prohibits the use of children in war. Seeks to protect children from hostilities. What if children enlist? -- it appears that they have a choice, but DO they really? can they volunteer their surfaces in a truly legal way? When they've served in these armies, argument that there's a "mutual process of brutalisation". So they're dehumanised, but war's also made them killers. Should neither be enlisted nor be the victims of war. THEY HAVE BEEN TARGETED -- e.g. 1994 Rwanda; "to kill the big rats, you have to kill the little rats". -- stamp out the race. International Criminal Court has jurisdiction to punish such crimes. it is a crime at international law to enlist these soldiers + make them fight in a war. CRC EMPHASIS ON MATTERS OF WAR; WHERE DO CHILDREN FIT HERE?
Children to be protected against exploitation + violence. Protection against torture (torture convention out laws this too) + any other cruel, inhuman or degrading treatment or punishment. Emphasises family reunification; if separated, then they will try to reunify the child. Having a name + a nationality = have an identity. (What would it be like without this? Who would you be?) !
Article 38 of the CRC [1986] calls on States Parties to apply the rules of international humanitarian law that are relevant to the child, and to take every feasible measure "to ensure protection and care of children who are affected by armed conflict." - this is for ALL signatories. even if one of these signatories is involved in war; even if it's internal conflict or no. BUT some of the most brutal instances of
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these violations are internal. Article 39 of the CRC refers to the need for physical and psychological recovery and social reintegration of child victims. (try to help the damaged child back into society. "no," she said. "i'm too damaged.") BUT CHILDREN WHO ARE INFLICTED BY CONFLICT CAN HAVE AN AMOUNT OF TRAUMA THAT'S DIFFICULT TO REINTEGRATE THEM WITH. ARE THERE THE MEANS + FACILITIES TO DO THIS? OBLIGATION MORE SO RIGHT.
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“How can we tell what happened to us? There are no words to describe what we have witnessed. What we saw, what we heard, what we did, and how it changed our lives, is beyond measure. We were murdered, raped,
amputated, tortured, mutilated, beaten, enslaved and forced to commit terrible crimes.” - Truth + Reconciliation Commission Report for the Children of Sierra Leone in 2004. BOTH TURNED INTO PERPETRATOR + RECIPROCANT OF VIOLENCE. !
'Children are the greatest fanatics of all.' - Give em a gun and the facilities to kill, and they will.
Having a name + a nationality = have an identity. (What would it be like without this? Who would you be?) ACCOUNTABILITY FOR VIOLENCE? IS IT RESPONSIBILITY? CAN YOU PROVE INTENTION?
Harder with children; both brutalised AND being brutalised. International community doesn't have a consensus on what age a child is held criminally responsible. HAVE STRUGGLED TO REACH CONSENSUS AT WHAT AGE … When can they be tried? CRC defines a child as anyone under 18. Some specific provisions in international conventions; e.g, don't unlit anyone under 15 to fight in a war. CRIMINAL LIABILITY CONSISTENT.
Proetctions of the CRC don't include immunity from prosecution + punishment other than capital punishment or life mprisonment without possibility of release (what would it be like if a child was on trial? Was he brutalised?? No? What if he was an interesting character; curious; frightening?) STILL DON'T HAVE A CLEAR SENSE OF WHAT THE MINIMUM CRIMINAL LIABILITY IS; e.g !
“[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes”: -- Office
of the Special Representative of the Secretary-General. We simply don't really know. Age of 15 usually the measure as t o whether allowance should be made for children i n conflict; whether they can enlist. !
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“If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while associated with armed forces or armed group” (needs to match up, otherwise unfair. those considered children need to be treated as victims. needs to match up.) (crisp, sparse language + unapologetic, unremitting, unrelenting characters.)
Emphasis on restorative justice; DON'T punish them, see how you can restore them to peaceful working orders. Responsibiltiy to try & reintegrate the child, ater all. Want to rehabilitate them. Rome Statute/ICC makes the recruitment + use of children in armed forces/groups a WAR CRIME. Those associate will be war criminals. (ARTICLE 8 (2)E, 19 98.)
aRGUMENT MADE THAT STATES SHOULD CONCENTRATE ON PROSECUTING ADULT RECRUITERS + COMMANDERS FOR THE CRIME OF CHILD RECRUITMENT + CRIMES
FORCED CHILDREN TO COMMIT. Punitive punishment for adults, rehabilitation for children. THEY'RE responsible for the war machine. (Working Paper from the Special Assistant to the UN SG; look this up..) INTERNATIONAL CRIMINAL COURT + 'INNOVATIVE, ALTERNATIVE MECHANISMS'.
-- allows evidence + witnesses to allow children to seek justices if they are victims of international crimes, directly or not. children cn participate in a trial w/o necessarily having to give evidence. emphasis on treating kids as victims. other measures to supplement strictly legal ones; - tribunals, restorative models, commissions, committees to investigate whether human rights have occurred Truth and Reconciliation Committees in Sierra Leone that deals with child testimony. Do their best to uphold the CRC; complies best it can w. the principles of the CRC. CASE LAW; (some we need to recall; genocide, Narulyama, found Aus didn't ratify any egnocide conventions + wasn't responsible) e.g; Lubanga Case (Congolese Warlord); recruited cildren. Went to the ICC in 2012. (Democratic Republic of Congo in Prosecturo v. Lubanga.) !
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Thomas Lubanga Dyilo found guilty on charges of conscription and enlistment of children under the age of 15 by using them to participate actively in the ongoing armed conflict in Ituri. OFFENCE. Judgment is relevant since according to the Trial Chamber it extends to any armed group within the context of a noninternational armed conflict and within the ambit of international
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humanitarian law. -- i.e. does not STRICTLY SPEAKING HAVE TO BE AN INTERNATIONAL ACT; CAN BE LOCAL. CAN HAVE SOME INTERNATIONAL ACTORS -E.G, AGAIN WITH SYRIA -- BUT DOESN'T HAVE TO BE.DOMESTIC CONFLICT BUT INTERNATIONAL HUMANITARIAN LAW STILL APPLIES. The Chamber held that the offences of ‘conscripting’ and ‘enlisting’ are committed at the moment a child under the age of 15 is enrolled or joins an armed force or group, with or without compulsion” (Para. 618 Lubanga Judgment). [I.E; if they'd enlisted themselves, didn't matter.]
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- Child's ACTION was the critical thing; not the mental or their motives. WHAT DOES THE ADULT DO?
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Some consider this problematic as it doesn't consider the voluntariness of the situation; that said, is it appropriate to regard a child's consent as valid, esp. when they're under fifteen AND in a conflict situation? According to Lubanga, whether they volunteer or not is irrelevant. e.g; they won't be informed or aware. How do you prosecute those responsible for a crime if the crime's not PE RCEIVED as a crime by other offender or victim? e.g. might be a normal state of affairs locally. HOW/WHY SHOULD YOU PUNISH LUBANGA IF NEITHER VICTIM NOR WARLORD CONSIDERE IT A CRIME -- considering that not many in Sierra Leone consider it a crime; really, is quite normal? !
• • •
Is a child in law different from a child in culture? CULTURAL CONDITIONS -- might in fact, CAUSE INTEREST OR IT JUST /OCCURS/?
Prosecturo v. Normal in Sierra Leon; Sierra Leonean political, Sam Hinga Norma, charged w. war crimes, CAH including the recruitment of child soldiers. OCCURED IN 2004. (Prosecutor v. Norman)
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Norman argued that the Special Court could not try him for recruiting child soldiers because it was not a
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crime under international law during the years that the Prosecutor cited, beginning with the Special Court’s jurisdiction in 1996. [ LAW WASN'T VALID YET ???] Over the years is that an assumption/expectaton that enlisting child soldiers is bad; has been no specific case ON it, but it's become a norm not to criminalise. [FIRST OF IT'S KIND, THE NORMAN CASE.] Court: had become international custom and law even before 1996; e.g the CRC, Geneva Convention, African Charter on the Rights + Welfare of the Child, e.g.
NORM NEED NOT BE EXPRESSLY STATED IN AN INTERNATIONAL CONVENTION FOR IT TO CRYSTALLZE AS A CRIME UNDER CUSTOMARY INTERNATIONAL LAW. Lubanga (2012, Congo); child's mental state didn't matter, nor did it matter if the action wasn't considered a crime in their country; adult was still to be prosecuted. •
Norman: didn't matter if there were no laws on it; anit-child soldier recruitment was already considered a crime under customary international law.
POWERPOINT TWELVE; "most important document" -- convention on the rights of the child from 1989; v. important.
-> Growing body of case law re; children in international conflict, but also domestic conflict. Either participants OR victims of conflict. -- Revision; humanitarian intervention Has it been misused? Ideological premise to substitute for something else? Deemed a tool/a conceit when they say it's r escue/they intend to save other lives. !
Sometimes, that argument has been used to justify the rescue of a state’s nationals in another country for reasons of “legitimate self-defense” or an emergency to save lives, or the principle of non-derogation of a state’s right to protect its own integrity
Elements of valid "rescue" -- imminent threat of injury to national/failure or inability on part of the sovereign to protect those nationals + measures of protection confined to objects of PROTECTING THEM AGAINST INJURY SOLELY. NO FURTHER ATTEMPTS TO DESTABILISE THE COMMUNITY. ('52) - Waldock
de Vattel, 1754; assistance can be provided for insurrection in a territory. e.g there are Realpolitik interests in Syria, but those insurrectioners against Al-Asshad do not to be supported + protected. Kosovo -- need to recall it's a singular conflict; Simma says that as it can't/isn't likely to be repeated, we should not set new standards for it. It's "unfollowable" -- Clinton + others said it was "the first humanitarian war".
UNSC ignored here; the International Commission on Intervention formed in 2000 past Kosovo suggested that this could happen, Yearbook in 86 suggested that this suggested a dangerous precedent. Commission: !
The issue must be reframed not as an argument about the 'right
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to intervene' but about the 'responsibility to protect.'" (language shifted). brings out the humanitarian element more; right to intervene sounds sovereign; responsibility/ obligation sounds like a need: NOT an imposition. Issue was still determining where humanitarian intervention fit into the Charter since 2005; adopted later, although environmental interests were redacted.
• HUMANITARIAN INTERVENTION; -> specifically targets wrongdoing; NOT to destroy the enemy. inflict as minimal harm to the civilian population & minimise damage to states so it can recover. CRITICS;
Marx -- human rights an illusion. Bentham -- rights are nonsense upon stilts; require legality. Marxists, e.g. "human rights ideological; masks human relations. Used as a weapon + crafted as one to justify power." (think of this in relation to U.N) Chomsky: "humanitarism has become an ideology of sorts." ( critical of Kosovo.) Post Cold War, could be used as an excuse to interfere in the affairs of other states. EG intervention to punish "naughty states". CRUISE MISSILE LEFTISM; at this point, split between progressives + liberals in 1990 as to whether humanitarian intervention could be justified. happend oner kosovo.
Chomsky, right "Kosovo should not have taken place/interventionism." Left; "Should have occurred".
Neo-conservative version of Leninist Bolshevism; some on the left who agree foce is required, some on the right who also accept it. Previously on the "left" of the politics; these days, some of the most conservative. WAR ON IRAQ; 2003; DAMAGED THE IMAGE OF HUMANITARIAN INTERVENTION.
Idea was that Saddam Hussein had weapons of mass direction, which didn't truly exist. Bush argued that it was a humanitarian mission to remove Saddam Hussein. Massively damaging though. HUMAN RIGHTS WATCH; use of military force for humanitarian goals seems cynical. Human rights a weapon?
Conor Gearty + Michael Ignatieff. Gearty called Ignatieff the "virus in the human rights movement." Ignatieff; post 9/11 "certain circumnstaces where torture could be justified + boundaries could be penetrated, so as to prevent human rights." HUMANITARIAN INTERVENTION THOUGHT TO BE PART OF THIS MIX. !
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Ignatieff: “necessity may require us to take actions in defence of democracy which will stray from democracy’s own foundational commitments to dignity.” TO DO TERRIBLE THINGS FOR A RIGHTEOUS CAUSE. Gearty concerned; Ignatieff suggesting that it's okay to invade a country b/c the country has a tyrant at it's head; we can torture an individual b/c that individual will be useful to us. Says you can't call it humanitarian intervention if
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you're engaging in the same sort of evil; it's hypocritical. Ignatieff; you have to engage in acts of lesser evil to stamp out greater evil. GEARTY from London School of Economics; attacks the righteousness of the cause that justifies these evils. ON IGNATIEFF; “Michael Ignatieff has been useful to the US government as it has tried to promote democracy in the middle east. He brings to this unofficial job a special, doubleedged approach: he provides conservative arguments to the liberal audience and liberal alibis to the conservatives”: Mariano Aguirre, “Exporting Democracy, Revising Torture,” http://www.opendemocracy.net/democracyamericanpower/ jefferson_2679.jsp (JUSTIFIES THE USE OF FORCE; JUSTIFIES IT IN INVADING COUNTRIES; provides an alibi + therefore an alibi for humanitarian imperialism.)
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Jean Bricmont -- "selling of human rights" -- has been commodified in the context of war. Being "sold" to justify the use of force. You want to sell it to the public; by justifying what's happened; say this person is wicked, this regime is disgusting -- would anybody miss it if you intervened?
Humanitarian intervention is simply another ideology in the post Cold War vacuum which was marketed v. effectively. Simly another form of "liberalism" which has been used for example by President JFK for interventions in Indochina & America (get rid of the dictatorships that weren't friendly to America, prop up those who are.) Bricmont; everything to do with the IMAGE of human rights. HUMANITARIAN IDEOLOGIES;
Bernard Kouchner, Doctors Without Borders -- example of how humanitarianism is used as a weapon. Some say HI on a whole is politically motivated; if you're giving aid, you want to reform a country/place -- e.g Australia gives aid, expects them to qualify or reach a certain political level. Doctors sans frontières; trying to combine the adventurism of communism w. that of humanitarianism (furthering humanitarian goals) +he advocates the use of force, although contrary to a doctor's interests. Supported Kosovo + Libya intervention. Conor Foley; talks about how humanitarisnm has become subordinate to war -- wars have become humanised? (like Bricmont) -- bring in the NGOs + Amnesty International + then you can get a "morally better war". !
Foley: “bodies that were established to alleviate human suffering could, on occasion, be given the task of making the case for war.” (e.g Amnesty International; find a reason that there's a breach. Perhaps they think war is necessary in order to create a better world? Perhaps they think war is necessary in order to create a better world.)
SAVE DARFUR; - How should justice in the international community happen here? Punish rogue states in the idea of a human ideal.
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Mahmood Mamdani, Saviours and Survivors (2009): “the Save Darfur lobby demands, above all else, justice, the right of the international community—really the big powers in the Security Council—to punish ‘failed’ or ‘rogue’ states, even if it be at the cost of more bloodshed and a diminished possibility of reconciliation…. In its present form, the call for justice is really a slogan that masks a big-power agenda to recolonize Africa .” -(whites can democratise; turn it into a clone of you. this is a clear possibility.) (uses humanitarianism to further border goals; topple the dictator, secure assets. simply a smokescreen that lets you do something greater.)
Rieff: "there are no humanitarian solutions to humanitarian problems". BUT THE USE OF FORCE IS PART OF POWER; STATE POEWR, MORE SO. STILL AN EXERTION OF BRUTE FORCE. CHILDREN'S RIGHTS General acceptd principles for kids -NOT TO BE INVOLVED IN WAR + CONFLICT. TO HAVE DECENT HOUSING, HABITATION + SANITATION. TO HAVE DECENT EDUCATION. TO HAVE AN ADEQUATE HOUSEHOLD TO BE RAISED IN.
TO BE ADEQUATELY FED. Exists in a "rubric' of other conventions -- NOT stand alone thing; exists alongside other obligations/ rights. e.g international covenant for civil + political rights (1986) have protections for juveniles. or torture; juveniles shouldn't be tortured or held of extended periods of time/detention. !
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Convention on the Rights of the Child (1989) -- also part of an interlocking laws + rights International Covenant on Civil and Political Rights (ICCPR); International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (CAT), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
MOST IMPORTANT CONVENTION; INTERNATIONAL CONVENTION ON THE RIGHTS OF THE CHILD. (1989).
- one of the most signatures of all time. - Australia ratified in 1990 + need to ensure all chidden in Australia enjoy the rights set out in the treaty. also has a follow up monitoring mechanism that requires nations to make reports on their progress. -- some progress HAS been made to obtain it's goals. Rights in the CRC: (FIRST DOCUMENT TO DEAL W. CHILDREN IN A SPECIFIC CONTEXT.)
- to survival + development + respect for the best interests of the child (Family Law Act in 1975) -- PARAMOUNT consideration. as a PRIMARY consideration. - right of all children to express their views. BUT at what point is a child sufficiently aware to consent to procedure? (sexual consent, for example, is at 13.) - right of all children to enjoyy all the rights of the CRC w/o discrimination (e.g no Plessey v. Ferguson instance.)
rIGHTS:
- always at a disadvantage for their perceived vulnerability + inability to seek legal advice, esp int arms of customary international law. BUT not interns of international agreements guarding their welfare. (i.e; there are agreements, expectations on what should be done, but no legal ramifications.) Conventions are made to deal with this; e.g, the UN Convention on the Rights of the Child 1989. - CRC ATTEMPTS TO ADDRESS THIS; advisory law not merely declaratory. ADVISORY LAW ISSUES GUIDELINES; SIGNATORY COUNTRIES HAVE AN OUTLINE OF WHAT NEEDS TO BE DONE. DECLARATORY PROVIDES NO ADVICE OR INSTRUMENT TO EXTEND IT FURTHER; E.G, THE UDHR. CRC OBLIGATES STATES TO IMPLEMENT IT'S MEASURES. CRC; Puts an emphasis on monitoring , tells all it's signatories it has to do this. e.g; every 5 years Aus gov has to submit a report on what it's doing to protect & promote the rights contained in the Crc, the progress that has been made in protecting & promoting these rights & the obstacles + problems that have been encountered in implementing the CRC. (i.e the length of how it's being complied to.) Refugee problem in Australia is an example of where we're not complying; children in these facilities leaves a debate as to whether the CRC is being complied w.Detaining children like that is a violation.
UN receives these reports from Australia, but also, "shadow reports". e.g; NGOs make their own reports. AUSTRALIAN'S COMPLIANCE; - Noticed with the genocide, Narulyama; e,g CRC is NOT part of Australian law but takes into account complaints, just as the HREOC takes the CRC into account.
Most important body in observing rights is the HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986. Examines compliance with the CRC; has an official role to PROTECT + PROMOTE CHLDREN'S RIGHTS. HREOC can make recommendations + note breaches, but they're not enforceable Power of recommendation + power of shame is, to some degree, sufficient enough. To have an official law-body in the HREOC would mean that the Cth would be more resistant than it currently is. Same goes for the way we've signed up for the genocide convention, but we don't have law ratified here. YES; there are legitimate expectations of what human rights should occur here, considering that we've ratified it; same goes for the CRC (86) CRC may be reflected in certain mandates; Family Law Act, for example.
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Specific rights of protection at IHRL Article 37(c) of the CRC states
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that “[e]very child deprived of liberty shall be treated with humanity and respect for inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age” -I.E, DETENTION SHOULDN'T OCCUR. Problems in refugee law
CHILDREN + WAR:
Various conflict zones use child soldiers -- e.g, Lord's Army + Congo. Instances where it's been v. conspicuous; Sierra Leone + Congo. CRC says that this is a crime to conscript children. International law prohibits the use of children in war. Seeks to protect children from hostilities. What if children enlist? -- it appears that they have a choice, but DO they really? can they volunteer their surfaces in a truly legal way? When they've served in these armies, argument that there's a "mutual process of brutalisation". So they're dehumanised, but war's also made them killers. Should neither be enlisted nor be the victims of war. THEY HAVE BEEN TARGETED -- e.g. 1994 Rwanda; "to kill the big rats, you have to kill the little rats". -- stamp out the race. International Criminal Court has jurisdiction to punish such crimes. it is a crime at international law to enlist these soldiers + make them fight in a war. CRC EMPHASIS ON MATTERS OF WAR; WHERE DO CHILDREN FIT HERE?
Children to be protected against exploitation + violence. Protection against torture (torture convention out laws this too) + any other cruel, inhuman or degrading treatment or punishment. Emphasises family reunification; if separated, then they will try to reunify the child. Having a name + a nationality = have an identity. (What would it be like without this? Who would you be?) !
Article 38 of the CRC [1986] calls on States Parties to apply the rules of international
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humanitarian law that are relevant to the child, and to take every feasible measure "to ensure protection and care of children who are affected by armed conflict." - this is for ALL signatories. even if one of these signatories is involved in war; even if it's internal conflict or no. BUT some of the most brutal instances of these violations are internal. Article 39 of the CRC refers to the need for physical and psychological recovery and social reintegration of child victims. (try to help the damaged child back into society. "no," she said. "i'm too damaged.") BUT CHILDREN WHO ARE INFLICTED BY CONFLICT CAN HAVE AN AMOUNT OF
TRAUMA THAT'S DIFFICULT TO REINTEGRATE THEM WITH. ARE THERE THE MEANS + FACILITIES TO DO THIS? OBLIGATION MORE SO RIGHT. • !
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“How can we tell what happened to us? There are no words to describe what we have witnessed. What we saw, what we heard, what we did, and how it changed our lives, is beyond measure. We were murdered, raped, amputated, tortured, mutilated, beaten, enslaved and forced to commit terrible crimes.” - Truth + Reconciliation Commission Report for the Children of Sierra Leone in 2004. BOTH TURNED INTO PERPETRATOR + RECIPROCANT OF VIOLENCE. 'Children are the greatest fanatics of all.' - Give em a gun and the facilities to kill, and they will.
Having a name + a nationality = have an identity. (What would it be like without this? Who would you be?) ACCOUNTABILITY FOR VIOLENCE? IS IT RESPONSIBILITY? CAN YOU PROVE INTENTION?
Harder with children; both brutalised AND being brutalised.
International community doesn't have a consensus on what age a child is held criminally responsible. HAVE STRUGGLED TO REACH CONSENSUS AT WHAT AGE … When can they be tried? CRC defines a child as anyone under 18. Some specific provisions in international conventions; e.g, don't unlit anyone under 15 to fight in a war. CRIMINAL LIABILITY CONSISTENT.
Proetctions of the CRC don't include immunity from prosecution + punishment other than capital punishment or life mprisonment without possibility of release (what would it be like if a child was on trial? Was he brutalised?? No? What if he was an interesting character; curious; frightening?) STILL DON'T HAVE A CLEAR SENSE OF WHAT THE MINIMUM CRIMINAL LIABILITY IS; e.g !
“[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes”: -- Office of the Special Representative of the Secretary-General. We simply don't really know.
Age of 15 usually the measure as t o whether allowance should be made for children i n conflict; whether they can enlist. !
“If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while associated with armed forces or
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armed group” (needs to match up, otherwise unfair. those considered children need to be treated as victims. needs to match up.) (crisp, sparse language + unapologetic, unremitting, unrelenting characters.)
Emphasis on restorative justice; DON'T punish them, see how you can restore them to peaceful working orders. Responsibiltiy to try & reintegrate the child, ater all. Want to rehabilitate them. Rome Statute/ICC makes the recruitment + use of children in armed forces/groups a WAR CRIME. Those associate will be war criminals. (ARTICLE 8 (2)E, 19 98.)
aRGUMENT MADE THAT STATES SHOULD CONCENTRATE ON PROSECUTING ADULT RECRUITERS + COMMANDERS FOR THE CRIME OF CHILD RECRUITMENT + CRIMES FORCED CHILDREN TO COMMIT. Punitive punishment for adults, rehabilitation for children. THEY'RE responsible for the war machine. (Working Paper from the Special Assistant to the UN SG; look this up..) INTERNATIONAL CRIMINAL COURT + 'INNOVATIVE, ALTERNATIVE MECHANISMS'.
-- allows evidence + witnesses to allow children to seek justices if they are victims of international crimes, directly or not. children cn participate in a trial w/o necessarily having to give evidence. emphasis on treating kids as victims. other measures to supplement strictly legal ones; - tribunals, restorative models, commissions, committees to investigate whether human rights have occurred Truth and Reconciliation Committees in Sierra Leone that deals with child testimony. Do their best to uphold the CRC; complies best it can w. the principles of the CRC. CASE LAW; (some we need to recall; genocide, Narulyama, found Aus didn't ratify any egnocide conventions + wasn't responsible) e.g; Lubanga Case (Congolese Warlord); recruited cildren. Went to the ICC in 2012. (Democratic Republic of Congo in Prosecturo v. Lubanga.) !
Thomas Lubanga Dyilo found
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guilty on charges of conscription and enlistment of children under the age of 15 by using them to participate actively in the ongoing armed conflict in Ituri. OFFENCE. Judgment is relevant since according to the Trial Chamber it extends to any armed group within the context of a noninternational armed conflict and within the ambit of international humanitarian law. -- i.e. does not STRICTLY SPEAKING HAVE TO BE AN INTERNATIONAL ACT; CAN BE LOCAL. CAN HAVE SOME INTERNATIONAL ACTORS -E.G, AGAIN WITH SYRIA -- BUT DOESN'T HAVE TO BE.DOMESTIC CONFLICT BUT INTERNATIONAL HUMANITARIAN LAW STILL APPLIES.
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The Chamber held that the offences of ‘conscripting’ and ‘enlisting’ are committed at the moment a child under the age of 15 is enrolled or joins an armed force or group, with or without compulsion” (Para. 618 Lubanga Judgment). [I.E; if they'd enlisted themselves, didn't matter.] - Child's ACTION was the critical thing; not the mental or their motives. WHAT DOES THE ADULT DO?
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Some consider this problematic as it doesn't consider the voluntariness of the situation; that said, is it appropriate to regard a child's consent as valid, esp. when they're under fifteen AND in a conflict situation? According to Lubanga, whether they volunteer or not is irrelevant. e.g; they won't be informed or aware. How do you prosecute those responsible for a crime if the crime's not PE RCEIVED as a crime by other offender or victim? e.g. might be a normal state of affairs locally. HOW/WHY SHOULD YOU PUNISH LUBANGA IF NEITHER VICTIM NOR WARLORD CONSIDERE IT A CRIME -- considering that not many in Sierra Leone consider it a crime; really, is quite normal? !
Is a child in law different from a child in culture? CULTURAL
CONDITIONS -- might in fact, CAUSE INTEREST OR IT JUST /OCCURS/? • • •
Prosecturo v. Normal in Sierra Leon; Sierra Leonean political, Sam Hinga Norma, charged w. war crimes, CAH including the recruitment of child soldiers. OCCURED IN 2004. (Prosecutor v. Norman)
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Norman argued that the Special Court could not try him for recruiting child soldiers because it was not a crime under international law during the years that the Prosecutor cited, beginning with the Special Court’s jurisdiction in 1996. [ LAW WASN'T VALID YET ???] Over the years is that an assumption/expectaton that enlisting child soldiers is bad; has been no specific case ON it, but it's become a norm not to criminalise. [FIRST OF IT'S
